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http://www.archive.org/details/reportsofcontest0322mass 


Public  Document  No.  37 

REPORTS 

of 

CONTESTED  ELECTION  CASES 

in  the 

SENATE  AND  HOUSE  OF  REPRESENTATIVES 

of 

THE  COMMONWEALTH  OF  MASSACHUSETTS 
FOR  THE  YEARS  1903-1922 


TOGETHER  WITH  THE  OPINIONS  OF  THE  SUPREME 
JUDICIAL    COURT    RELATING    TO    SUCH    ELECTIONS 


Compiled  and  edited  by 
PAUL    D.    HOWARD 

For  the  Special  Legislative  Committee  on  Con- 
tested Election  Cases  under  Authority  of  a  Joint 
Order  of  the  Senate  and  House  of  Representatives 


BOSTON 

WRIGHT  &  POTTER  PRINTING  COMPANY.  STATE  PRINTERS 

32  DERNE  STREET 


Cfje  Commontoealtft  of  Qiaggacjmgettsi 


To  the  General  Court  of  Massachusetts. 

The  Special  Recess  Committee  on  Contested  Election  Cases, 
authorized  in  accordance  with  a  joint  order  of  the  Senate  and 
House  of  Representatives,  adopted  May  27,  1921,  has  the 
honor  to  transmit  the  following  report. 

ANDREW  A.  CASASSA,  Chairman. 

frank  h.  putnam, 
william  h.  McDonnell. 

LLOYD  MAKEPEACE,  V ice-Chairman. 
JOHN  C.  BRIMBLECOM. 
WALTER  S.  HALE. 
ALFRED  H.  WHITNEY. 
CARL  J.  ROLANDER. 
WILLIAM  H.  WINNETT. 
WILLIAM  H.  GRADY. 

PAUL  D.  HOWARD,  Clerk. 


Cfje  Commontoealti)  of  Q&a$wtt)umt$ 


The  Joint  Special  Recess  Committee  on  Contested  Election 
Cases  was  established  under  the  following  order:  ■ — 

Ordered,  That  a  joint  special  committee,  to  consist  of  three  members 
of  the  Senate  and  seven  members  of  the  House  committee  on  Elections, 
sit  during  the  recess  of  the  General  Court  for  the  purpose  of  preparing 
and  publishing  an  edition  of  the  reports  of  such  contested  elections  of 
the  Legislature,  from  the  year  nineteen  hundred  and  three  to  the  year 
nineteen  hundred  and  twenty-one,  inclusive,  as  may  be  of  value  as  prece- 
dents, with  a  suitable  index  thereto.  The  committee  shall  be  furnished 
with  a  room  in  the  State  House,  and  shall  have  the  service  of  a  clerk 
who  shall  be  allowed  such  compensation  as  may  be  approved  by  the 
Governor  and  Council.  Members  of  the  committee  shall  receive  no  com- 
pensation for  their  services,  but  may  be  allowed  for  necessary  expenses 
such  sums  as  may  be  approved  by  the  Governor  and  Council.  The  com- 
mittee shall  report  to  the  next  annual  session  of  the  General  Court  not 
later  than  the  second  Wednesday  in  January. 


CASES  REPORTED. 


PAGE 

Aldrich  (Riley  v.) 

.    House,  1904  . 

28 

Apportionment  Commissioners  (Attorney-Gen- 

eral v.) 

.     Sup.  Jud.  Ct.,  1916      . 

.     165 

Apportionment  Commissioners  (Brophy  v.] 

.     Sup.  Jud.  Ct.,  1916     . 

.     189 

Apportionment  Commissioners  (Donovan 

d.)     .     Sup.  Jud.  Ct.,  1916      . 

.     179 

Ashley  v.  Three  Justices  of  Superior  Court 

.     Sup.  Jud.  Ct.,  1917      . 

194 

Attorney-General   v.   Apportionment   Commis- 

sioners    

.     Sup.  Jud.  Ct.,  1916      . 

165 

Attorney-General  v.  Campbell 

.     Sup.  Jud.  Ct.,  1906      . 

123 

Attorney-General  v.  Hutchinson  . 

.     Sup.  Jud.  Ct.,  1904      . 

119 

Attorney-General  v.  McOsker 

.     Sup.  Jud.  Ct.,  1908      . 

142 

Attorney-General  v.  Stearns  . 

.     Sup.  Jud.  Ct.,  1908      . 

142 

Beauchemin  v.  Flagg       .... 

.     Sup.  Jud.  Ct.,  1918      . 

217 

Blackmer  v.  Hildreth      .... 

.     Sup.  Jud.  Ct.,  1902      . 

95 

35 

58 

53 

Brewster  v.  Sherman       .... 

.     Sup.  Jud.  Ct.,  1907     . 

132 

Brophy  v.  Apportionment  Commissioners 

.     Sup.  Jud.  Ct.,  1916     . 

189 

73 

73 

73 

73 

.     House,  1921  ... 

69 

Campbell  (Attorney-General  v.)    . 

.     Sup.  Jud.  Ct.,  1906     . 

123 

,     House,  1911  . 

44 

Carter  (Wheeler  v.)         .        .        .     ■'  . 

.     Sup.  Jud.  Ct.,  1902      . 

87 

.     Senate,  1912 

47 

Cobb  (Whitney  v.) 

56 

15 

Commonwealth  v.  Edgerton  . 

.     Sup.  Jud.  Ct.,  1909      . 

147 

Commonwealth  v.  Rogers 

.     Sup.  Jud.  Ct.,  1902      . 

99 

County  Commissioners  (McGlue  v.)     . 

.     Sup.  Jud.  Ct.,  1916      . 

183 

Crean  (Fritz  v.) 

.     Sup.  Jud.  Ct.,  1903      . 

109 

.     House,  1910  . 

40 

Dinan  v.  Swig 

.     Sup.  Jud.  Ct.,  1916      . 

160 

Donovan  v.  Apportionment  Commissioners 

.     Sup.  Jud.  Ct.,  1916      . 

179 

73 

73 

Edgerton  (Commonwealth  v.) 

.     Sup.  Jud.  Ct.,  1909      . 

147 

Eldridge  v.  Selectmen  of  Chatham 

.     Sup.  Jud.  Ct.,  1906      . 

129 

Election  Commissioners  (Nichols  v.)    . 

.     Sup.  Jud.  Ct.,  1907      . 

136 

Fisher  (McGlue  v.)          .... 
Flagg  (Beauchemin  v.)    .        .        . 

.     House,  1913  . 

52 

.     Sup.  Jud.  Ct.,  1918      . 

217 

Flanders  v.  Roberts         .... 

.     Sup.  Jud.  Ct.,  1903      . 

113 

32 

Fritz  v.  Crean 

.     Sup.  Jud.  Ct.,  1903      . 

109 

CASES   REPORTED. 


Harvey  v.  Bradbury House,  1920  . 

Hildreth  (Blackmer  v.) Sup.  Jud.  Ct., 

Hull  (Perry  v.) Sup.  Jud.  Ct., 

Hutchinson  (Attorney-General  v.)  Sup.  Jud.  Ct., 

Kiernan  (Carleton  v.) House,  1911 

Lambert  v.  Forristall       .        .'  .        .        .  House,  1907 

Lattimore  v.  Burke House,  1921  . 

Lattimore  v.  Driscoll House,  1921  . 

Mansfield  v.  Secretary  of  Commonwealth  .        .  Sup.  Jud.  Ct., 

McGlue  v.  County  Commissioner         .        .        .  Sup.  Jud.  Ct., 

McGlue  v.  Fisher House)  1913  . 

McOsker  (Attorney-General  v.)     .        .        .        .  Sup.  Jud.  Ct., 

Moore  v.  Booth House»  1910  . 

Naphen  v.  Brennan House.  1914  . 

Newell  v.  Coffin House,  1903  . 

Nichols  v.  Election  Commissioners       .        .        .  Sup.  Jud.  Ct., 

Perry  v.  Hull Sup.  Jud.  Ct., 

Pratt  v.  Sargent House,  1912  . 

Ray  v.  Registrars  of  Voters  of  Ashland        .        .  Sup.  Jud.  Ct., 

Registrars  of  Voters  of  Ashland  (Ray  v.)     .        .  Sup.  Jud.  Ct., 

Riley  v.  Aldrich House,  1904  . 

Roberts  (Flanders  v.) Sup.  Jud.  Ct., 

Rogers  (Commonwealth  v.) Sup.  Jud.  Ct., 

Sargent  (Pratt  v.) House,  1912  . 

Secretary  of  Commonwealth  (Mansfield  v.)        .  Sup.  Jud.  Ct., 

Selectmen  of  Chatham  (Eldridge  v.)    .        .        .  Sup.  Jud.  Ct., 

Sherman  (Brewster  v.) Sup.  Jud.  Ct., 

Stearns  (Attorney-General  v.)  Sup.  Jud.  Ct., 

Sullivan  (Dennett  v.) House,  1910  . 

Sweeney  (Callahan  v.) House,  1921  . 

Swig  (Dinan  v.) Sup.  Jud.  Ct., 

Three  Justices  of  Superior  Court  (Ashley  v.)      .  Sup.  Jud.  Ct., 

Vinson  (Clarkson  v.) Senate,  1912 

Wheeler  v.  Carter Sup.  Jud.  Ct., 

Whitney  v.  Cobb House,  1915  . 


PAGE 

58 

1902   . 

95 

1902   . 

93 

1904   . 

119 

44 

32 

73 

73 

1917   . 

213 

1916   . 

183 

52 

1908   . 

142 

35 

53 

15 

1907   . 

136 

1902   . 

93 

.   45 

1915   . 

155 

1915   . 

155 

28 

1903   . 

113 

1902   . 

99 

.   45 

1917   . 

213 

1906   . 

.  129 

1907   . 

.  132 

1908   . 

.  142 

.   40 

.   69 

1916   . 

.  160 

1917   . 

194 

.   47 

1902   . 

87 

56 

CASES  CITED. 


PAGE 

Adams  v.  Lanadon,  18  Idaho,  483 211 

Adams  v.  Moore,  Mass.  Election  Cases,  1886-1902  (Russell's  ed.) ,  79         .      37,  38 

Ames  v.  Kansas,  111  V.  S.  449 204,206 

Apple  v.  Barcroft,  158  111.  649 157 

Attorney-General  v.  Apportionment  Commissioners,  224  Mass.  598    .         179,  181, 

186,  187,  190 

Attorney-General  v.  Boston,  123  Mass.  460 134,  176 

Attorney-General  v.  Campbell,  191  Mass.  497 68 

Attorney-General  v.  City  Council  of  Lawrence,  111  Mass.  90  176 

Attorney-General  v.  Crocker,  138  Mass.  214 91 

Attorney-General  v.  Drohan,  169  Mass.  534 116 

Attorney-General  v.  Jochin,  99  Mich.  358         ......        .  203 

Attorney-General  v.  Provident  Institution  for  Savings,  201  Mass.  23  .  184 

Attorney-General  v.  Sullivan,  163  Mass.  446 202,  204,  206 

Attorney-General  v.  Tillinghast,  203  Mass.  539 209 

Austin  v.  Sweet,  Mass.  E.  C.  L.  &  R.  189-190 20 

Bailey  v.  Marden,  193  Mass.  277 215 

Baird  v.  Supervisors  of  King's  County,  138  N.  Y.  95              .        .        .        .  173 

Beauchemin  v.  Flagg,  229  Mass.  23 68 

Berea  College  v.  Kentucky,  211  V.  S.  45  .        .        .        .        .        .        .        .  210 

Beremyer  v.  Kreitz,  135  111.  591 64 

Blackmer  v.  Hildreth,  181  Mass.  29 127,  134,  159 

Bogin  v.  Perotti,  224  Mass.  152 208 

Boston,  petitioner,  221  Mass.  468       .   ' 164 

Boston  v.  Chelsea,  212  Mass.  127       .        .        ...        .        .        .        .        .  163 

Boston  Supply  v.  Rubin,  214  Mass.  217 158 

Bothwell  v.  Boston  Elevated  Railway,  215  Mass.  467 209 

Bowers  v.  Smith,  111  Mo.  45 106,128 

Brayton  v.  Fall  River,  124  Mass.  95 164 

Brewster  v.  Sherman,  195  Mass.  222          ...        37,  38,  43,  68,  176,  184,  218 

Brien  v.  Commonwealth,  5  Met.  508 201 

Bromberg  v.  Haralson,,  44th  Congress,  Smith,  355 83 

Brooks  v.  State,  162  Ind.  568 192 

Brown's  Case,  173  Mass.  498      .                206,  209 

Brown  v.  McCollum,  76  Iowa,  479 63,  157 

Burt  v.  Babbitt,  Mass.  E.  C.  L.  &  R.  174-175 20 

Capen  v.  Foster,  12  Pick.  485      . 100,  169 

Carleton  v.  Rugg,  149  Mass.  550 204 

Case  of  Supervisors  of  Elections,  114  Mass.  247 163 

Cheney  v.  Barker,  198  Mass.  356 176 

Cheney  v.  Coughlin,  201  Mass.  204 200 

Claflin  v.  Wood,  L.  &  R.  E.  C.  353 26 

Clark  v.  Board  of  Examiners,  126  Mass.  282 117 

Cleland  v.  Porter,  74  111.  76 128 

Coffin  v.  Coffin,  4  Mass.  1 162 


10 


CASES  CITED. 


Cole  v.  Tucker,  164  Mass.  486 

Collins  v.  Cogswell,  L.  &  R.  390         .... 
Commonwealth  v.  Anthes,  5  Gray,  185 
Commonwealth  v.  Bingham,  158  Mass.  169 
Commonwealth  v.  Bishop,  165  Mass.  148 
Commonwealth  v.  Boston  &  Northern  Street  Railway, 
Commonwealth  v.  Brown,  14  Gray,  419    . 
Commonwealth  v.  Connelly,  163  Mass.  539 
Commonwealth  v.  Coy,  157  Mass.  200 
Commonwealth  v.  Dill,  160  Mass.  536 
Commonwealth  v.  Donovan,  170  Mass.  228 
Commonwealth  v.  Gagle,  147  Mass.  576   . 
Commonwealth  v.  Harley,  7  Met.  506 
Commonwealth  v.  Hoxey,  16  Mass.  385    . 
Commonwealth  v.  Hunton,  168  Mass.  130 
Commonwealth  v.  Hunt,  Thach.  Crim.  Cas.  609 
Commonwealth  v.  Ingraham,  7  Gray,  46  . 
Commonwealth  v.  Ismahl,  134  Mass.  201 
Commonwealth  v.  Kellogg,  7  Cush.  473    . 
Commonwealth  v.  Leach,  156  Mass.  99     .        .        . 
Commonwealth  v.  Libbey,  216  Mass.  356 
Commonwealth  v.  McConnell,  162  Mass.  499 
Commonwealth  v.  McHale,  97  Penn.  St.  397   . 
Commonwealth  v.  Meserve,  154  Mass.  64 
Commonwealth  v.  Moody,  143  Mass.  177 
Commonwealth  v.  Moore,  214  Mass.  19    . 
Commonwealth  v.  National  Contracting  Co.,  201  Mass 
Commonwealth  v.  O'Brien,  12  Cush.  84    . 
Commonwealth  v.  Petranich,  183  Mass.  217    . 
Commonwealth  v.  Phelps,  210  Mass.  78    . 
Commonwealth  v.  Poisson,  157  Mass.  200 
Commonwealth  v.  Scott,  123  Mass.  222    . 
Commonwealth  -a.  Shaw,  7  Met.  52    . 
Commonwealth  v.  Silsbee,  9  Mass.  417 
Commonwealth  v.  Smith,  132  Mass.  289  . 
Commonwealth  v.  Smith,  163  Mass.  411  . 
Commonwealth  v.  Sullivan,  165  Mass.  183 
Commonwealth  v.  Waterman,  122  Mass.  43     . 
Commonwealth  v.  Wilson,  152  Mass.  12   . 
Connecticut  River  Railroad  v.  County  Commissioners, 
Coughlin  v.  McElroy,  72  Comm.  99  . 
County  Commissioners,  petitioners,  140  Mass.  181 
County  of  Berkshire  v.  Caude,  222  Mass.  87    . 

Cox  v.  Segee,  206  Mass.  380 

Crafts  v.  Sikes,  4  Gray,  194 

Cunningham  v.  Mayor  of  Cambridge,  222  Mass.  574 


Dartmouth  v.  County  Commissioners,  153  Mass.  12 

Dearborn  v.  Ames,  8  Gray,  1 

Denney  v.  Mattoon,  2  Allen,  361 

Denney  v.  State,  144  Ind.  503     . 

Detroit  v.  Inspectors  of  Elections,  139  Mich.  548 

DeWalt  v.  Bartley,  146  Penn.  St.  529 

Diehl  v.  Totten,  32  No.  Dak.  131       .        . 

Dinan  v.  Swig,  223  Mass.  516      .... 

Donohue  v.  County  of  Will,  100  111.  94      . 


101,  157,  159, 


212  Mass. 


82, 


S6 


248 


127  Mass. 


50 


PAGE 

206,  208 
21 
209 
107 
108 
181 
107 
104 
108 
104 
104 
153 
105 
103 
107 
104 
107 
103 
105 
103 
208 
107 
103 
105 
105 
181 
214 
105 
210 
201 
108 
107 
104 
103 
45,  127 
107 
106 

104,  107 
107 
211 
157 
164 
210 
176 
199 
209 

199 
201 
164 
180 
141 
102 
210 
63,  210 
203 


CASES   CITED.  11 

PAGE 

Donovan  v.  Apportionment  Commissioners,  225  Mass.  55     .        .  186,  187,  190 

Dowdell,  Petitioner,  169  Mass.  387 205,  209 

Drogheda  Election  Petition,  9  Jr.  L.  T.  R.  161 106 

Electric  Welding  Co.,  Ltd.,  v.  Princo,  200  Mass.  386 170,  214 

Elwell  ».  Comstock,  99  Minn.  261 141 

Ewing  v.  Filley,  43  Penn.  St.  384 202 

Ex  parte  Harrison,  212  Mo.  88 211 

Ex  parte  Oklahoma,  220  U.  S.  191 211 

Ex  parte  Wilson,  114  U.  S.  417 .        .        .  206 

Fitzgerald  v.  Mayor  of  Boston,  220  Mass.  503 175 

Flanders  v,  Roberts,  182  Mass.  524    .        .        .     37,  42,  63,  134,  135,  157,  176,  218 

Fletcher  v.  Wall,  172  111.  426 157 

Foster  v.  Boston  Elevated  Railway,  214  Mass.  61 170 

French  v.  Bacon,  E.  C.  1853-1885,  p.  184         .......  61 

Fritz  v.  Crean,  182  Mass.  433 117 

Giddings  v.  Secretary  of  State,  93  Mich.  1 180 

Goodrich  v.  Lunenberg,  9  Gray,  38 180 

Graham  v.  Roberts,  200  Mass.  152 206 

Gray  v.  McLendon,  134  Ga.  224 203 

Green  v.  Corey,  210  Mass.  536 64 

Green  v.  Holway,  101  Mass.  243 159 

Guinn  v.  United  States,  238  U.  S.  347       .        . 210 

Halleck  v.  Boylston,  117  Mass.  469 92 

Harrison  v.  Davis,  1  Bartlett,  341      .........  92 

Haskell  v.  Clossom,  L.  &  R.  E.  C.  233      . 26 

Hatch  v.  Reardon,  204  U.  S.  152        .        .        . 184 

Hawkins  v.  Roberts  &  Son,  122  Ala.  130 203 

Hays  v.  Missouri,  120  U.  S.  68 209 

Hill  v.  McKim,  168  Mass.  100 94 

Hillman  v.  Flanders,  Mass.  E.  C.  L.  &  R.  338         ......  46 

Hingham  &  Quincy  Bridge  Corporation  v.  County  of  Norfolk,  6  Allen,  353  184 

Hiss  v.  Bartlett,  3  Gray,  468 162 

Howes  v.  Turner,  L.  R.  1  C.  P.  D.  670 98 

Hoxie  v.  Edwards,  24  R.  I.  338 128 

Hyde  Park  v.  Wiggin,  157  Mass.  94 211 

International  Text  Book  Co.  v.  Pigg,  217  U.  S.  91 210 

In  re  Baird,  142  N,  Y.  523  ....        , 187,  193 

In  re  Flynn,  181  Penn.  St.  457 114 

In  re  Metropolitan  Park  Commissioners,  petitioners,  209  Mass.  381  .        .  164 

In  re  Voting  Machine,  19  R.  I.  729 141 

Jaquith  v.  Wellesley,  171  Mass.  138 100 

Jeffrey  Manufacturing  Co.  v.  Blagg,  235  U.  S.  571 184 

Jones  v.  Loring,  L.  &  R.  El.  Cases,  36 38,  219 

Kansas  v.  Ziebold,  123  U.  S.  623 204 

Keller  v.  Robertson,  27  Mich.  116 67 

Kelly  v.  Adams,  183  111.  193 157 

Kelso  v.  Wright,  110  Iowa,  560 158 

Keogh  v.  Alderman  of  Holyoke,  156  Mass.  403 134 


12 


CASES   CITED. 


Keogh  v.  Holyoke,  156  Mass.  403 
Kimball  v.  Til  ton,  R.  &  R.  315  . 
Kinneen  v.  Wells,  144  Mass.  497 
Kirk  v.  Rhoades,  46  Cal.  398 

Lampasas  v.  Bell,  180  U.  S.  276 

Larcom  v.  Olin,  160  Mass.  102    . 

Lamed  v.  Wheeler,  140  Mass.  390 

Locke  v.  Lexington,  122  Mass.  290 

Lothrop,  petitioner  Mass.  Elec.  Cases  (L.  &  R.) ,  49 

Louisville  &  Nashville  Railroad  v.  Finn,  235  U.  S.  571 

Luce  v.  Board  of  Examiners,  153  Mass.  108 

Luce  v.  Parsons,  192  Mass.  8 

Lynch  v.  Chase,  55  Kans.  367     . 

Lynch  v.  Malley,  215  111.  574      .        . 

Mallett  v.  North  Carolina,  181  U.  S.  589 

Marchant  v.  Pennsylvania  Railroad,  153  U.  S.  380 

Mason  v.  State,  58  Ohio  St.  30    . 

Mather  v.  Brown,  L.  R.  1  C.  P.  D.  596 

May  v.  Wood,  172  Mass.  11,  15 

Mayor  of  Somerville  v.  Justices  of  the  Police  Court 

McGibbons  v.  Walden,  L.  &  R.  289  . 

McGlue  v.  County  Commissioners,  255  Mass.  59 

McPherson  v.  Secretary  of  State,  146  U.  S.  1 

Miner  v.  Olin,  159  Mass.  487 

Minor  v.  Happersett,  21  Wall.  162     . 

Moneyweight  Scale  Co.  v.  McBride,  199  Mass.  503 

Monks  v.  Jackson,  L.  R.  1  C.  P.  D.  683 

Montana  Co.  v.  St.  Louis  Mining  &  Milling  Co.,  152  U 

Moore  v.  Booth,  1910,  House  Document  259 

Moore  v.  Strickling,  46  W.  Va.  515    . 

Morgan,  petitioner,  Mass.  Election  Cases  (L.  &  R 

Moyer  v.  Van  De  Vanter,  12  Wash.  377 

Mulchinock  v.  Jenkins,  L.  &  R.  319  . 

Myers  v.  Anderson,  238  U.  S.  368 


Niblack  v.  Walls,  2  Hinds,  sec.  891    . 
Nichols  v.  Nichols,  136  Mass.  256      . 
Norris  v.  Handley,  42d  Congress,  Smith,  p.  68 
Northampton  Bridge  Case,  116  Mass.  442 

Ocampo  v.  United  States,  234  U.  S.  91  . 
O'Connell  v.  Mathews,  177  Mass.  518  63,  68,  92 
O'Donnell  v.  Pollock,  170  Mass.  441 
O'Driscoll  v.  Lynn  &  Boston  R.R.,  180  Mass.  187 
Old  Colony  Railroad  v.  Fall  River,  147  Mass.  455 
Oliver  v.  Washington  Mills,  11  Allen,  268 
Opinion  of  the  Justices,  7  Mass.  523 
Opinion  of  the  Justices,  10  Gray,  613 
Opinion  of  the  Justices,  117  Mass.  599 
Opinion  of  the  Justices,  136  Mass.  583 
Opinion  of  the  Justice,  138  Mass.  601 
Opinion  of  the  Justices,  142  Mass.  601 
Opinion  of  the  Justices,  157  Mass.  595 
Opinion  of  the  Justices,  178  Mass.  605 
Opinion  of  the  Justices,  201  Mass.  609 


,  220  Mass.  393 


,85 


106 


114 


S.  160 


134 


PAGE 

176 
21,  26,  39 
100,  169,  203 
62 

184 
134 
169 
117 
170 
184 
117 
64,  176 
202 
141 

209 
209 
203 

98 
103 
211 
21,  24,  25 
190,  211 
169 
102 
210 
176 

98 

209 

68,  2-19 

203 

114,  115 

106 

21 
210 

84 
153 

83 
164 


135, 


157 


162. 


168, 


209 

159,  218 

64 

107 

117 

207 

206 

169,  173 

111,  116 

25 

208 

172 

172 

138 

164 


CASES   CITED.  13 


PAGE 

Paine,  Elections,  c.  17 106 

Parker  v.  State,  133  Ind.  178 180 

Peabody  v.  School  Committee  of  Boston,  115  Mass.  383       ...        .  117,  161 

Pearsons  v.  Runlett,  110  Mass.  118 T       .        .        .133,184 

People  v.  Ammenwerth,  197  N.  Y.  340 176 

People  v.  Carlock,  198  111.  150 188 

People  v.  Coler,  173  N.  Y.  103 203 

People  v.  Hartwell,  12  Mich.  508 128 

People  v.  Kilduff,  15  111.  492 61 

People  v.  Kipley,  171  111.  44 206 

People  v.  Neil,  91  Cal.  465 104 

People  v.  Peck,  11  Wend.  604 128 

People  v.  Shaw,  133  N.  Y.  493 157 

People  v.  Wilson,  62  N.  Y.  186 128 

People  v.  Wood,  148  N.  Y.  142 97,  98,  128,  135 

Perry  v.  Hull,  180  Mass.  547 135 

Pettes  v.  Commonwealth,  126  Mass.  242 103 

Pevey  v.  Aylward,  205  Mass.  102 200 

Prescotttf.  Crossman,  El.  Cases  (1853  Ed.),  303 67,83 

Price  v.  Lush,  10  Mont.  61 98 

Prince  v.  Skellin,  71  Me.  361       .......       ^        ..        .  203 

Putnam  v.  Langley,  133  Mass.  204 Ill 

Rail  &  River  Coal  Co.  v.  Industrial  Commission  of  Ohio,  236  U.  S.  338     .  211 

Ransom  v.  Black,  25  Vioom,  446 .  105 

Ray  v.  Ashland,  221  Mass.  223 63,  66,  67,  218 

Rea  v.  Aldermen  of  Everett,  217  Mass.  427 176,  200 

Red  River  Valley  Bank  v.  Craig,  181  U.  S.  548 184 

Regina  v.  Brittain,  3  Cox  C.  C.  76 107 

Regina  v.  Miller,  1  Australian  Jus.  156     .        . 98 

Regina  v.  Parkinson,  L.  R.  3  Q.  B.  11 .  98 

Renado  v.  Lummus,  205  Mass.  155 206 

Rex  v.  Cumberland,  1  M.  E.  S.  190   .        . 134 

Rex  v.  Kent,  14  East,  395 134 

Rex  v.  Westmoreland,  1  Wels.  138 134 

Rice  v.  James,  193  Mass.  458 64 

Rice  v.  Welch,  Mass.  L.  &  R.  128 22 

Riley  v.  Aldrich,  1904  House 38,  68,  219 

Rounds  v.  Smart,  71  Maine,  380 106 

Rutter  v.  White,  204  Mass.  59 200 

Salisbury  Land  &  Improvement  Co.  v.  Commonwealth,  215  Mass.  371      .  210 

Sewall  v.  Jones,  9  Pick.  412 159 

Shepard  v.  Sears,  Mass.  Election  Cases  (L.  &  R.)  30      .        .        .     37,  68,  117,  219 

Sherrill  v.  O'Brien,  188  N.  Y.  185 192 

Simons  v.  People,  119  111.  617 106 

Spoiza  v.  German  Savings  Bank,  192  N.  Y.  8 205 

Stackpole  v.  Hallahan,  16  Mont.  40 98 

Stanley  v.  Mauley,  35  Ind.  275  .                62 

State  v.  Campbell,  48  Ohio  St.  435 187 

State  v.  Doherty,  16  Wash.  382 .  128 

State  v.  Douglas,  7  Iowa,  413 104,  203 

State  v.  Eagan,  115  Wis.  417 63,157 

State  v.  Goetze,  22  Wis.  363 128 

State  v.  Hawkins,  44  Ohio  St.  98 202 

State  d.  Lewis,  51  Conn.  113 202 


14  CASES   CITED. 


PAGE 

State  v.  Markham,  160  Wis.  431         ...        . 206 

State  v.  Marshall,  45  N.  H.  281 103,  104 

State  v.  Mason,  14  La.  Ann.'  505 84 

State  v.  Moore,  3  Dutcher,  105 104 

State  v.  Moores,  56  Neb.  1  .        .        ... 204 

State  v.  Pierce,  163  Wis.  615 211 

State  v.  Smith,  14  Wis.  497 ' 206 

State  v.  Thompson,  91  Minn.  279 204 

State  j).  Tweed,  3  Dutcher,  111 104 

State  v.  Van  Beek,  87  Iowa,  569 206 

State  v.  Weatherill,  125  Minn.  336 188 

Stimson  v.  Boardmon,  L.  &  R.  171 .      83,  84 

Stockbridge  v.  Mixer,  215  Mass.  415 206 

Stone  v.  Bean,  15  Gray,  42 .  180 

Stone  v.  Charlestown,  114  Mass.  214 169 

Stone  v.  Smith,  159  Mass.  413 209 

Stoughton  School  District  v.  Atherton,  12  Met.  105 Ill 

Strong,  petitioner,  20  Pick.  484 37,  114,  115,  127,  218 

Sullivan  v.  Allen,  Mass.  Election  Cases  (L.  &  R.)  99 114 

Supervisors  of  Du  Page  County  v.  People,  65  111.  360 128 

Supervisors  of  Houghton  County  v.  Secretary  of  State,  92  Mich.  638         .  180 

Swan  v.  Justices  of  the  Superior  Court,  222  Mass.  542 170 

Taft  v.  Adams,  3  Gray,  126 202 

Tandy  v.  Lavery,  194  111.  372 157 

Taunton  v.  County  of  Bristol,  213  Mass.  222 159 

Tax  Commissioner  v.  Putnam,  227  Mass.  522 208 

Taylor  v.  Beckham,  178  U.  S.  548 209 

Taylor  v.  Carr,  125  Tenn.  235 .203 

Tehan  v.  Justices  of  the  Municipal  Court,  191  Mass.  92        .        .        .        .  211 

The  King  v.  Severn  &  Wye  Railway,  2  B.  &  Aid.  646 134 

Torrey  v.  Millbury,  21  Pick.  64 159 

Tucker  v.  Fisk,  154  Mass.  574 199 

Union  Pacific  Railroad  v.  Hall,  91  U.  S.  343 134 

United  States  v.  Cruikshank,  92  U.  S.  542 103,  210 

United  States  v.  Waddell,  112  U.  S.  76 206 

Van  Winkle  v.  Crabtree,  34  Ore.  462 157 

Voorhees  v.  Arnold,  108  Iowa,  77 158 

Wade  ».  Smith,  213  Mass.  34 215 

Wales  v.  Belcher,  3  Pick.  508 201 

Walker  v.  Sauvinet,  92  U.  S.  90 ■     .  209 

Warren  v.  Mayor  &  Aldermen  of  Charlestown,  2  Gray,  84    .        .  134,  169,  210 

Washburn  v.  Phillips,  2  Met.  296 211 

Welch  v.  Fox,  205  Mass.  113 211 

Wellington,  petitioner,  16  Pick.  87 133,  176,  1S4 

Wheeler  v.  Carter,  180  Mass.  382       .. 134 

Whittam  v.  Zahorik,  91  Iowa,  23        . 157 

Williamson  v.  Lane,  52  Texas,  335     . 202 

Woodward  v.  Sarsons,  L.  R.  10  C.  P.  733 37,  114,  218 

Worcester  Color  Co.  v.  Henry  Wood's  Sons  Co.,  209  Mass.  105  .        .        .  204 

Young  v.  Blaisdell,  138  Mass.  344 202,  206 

Young  v.  Duncan,  218  Mass.  346 208 


MASSACHUSETTS     ELECTION     CASES, 

1903-1922 


House  — 1903. 

Committee  on  Elections.  —  Messrs.  J.  Franklin  Batchelder  of  Haverhill, 
chairman;  Robert  Rogerson  of  Mansfield,  Edmund  C.  Shepardson  of 
Athol,  Thomas  E.  Begley  of  Holyoke,  clerk,  Daniel  J.  Donnelly  of 
Boston,  Dwight  T.  Lane  of  Dighton  and  James  R.  Entwistle  of  Fram- 
ingham. 

Richard  Newell  v.  Samuel  F.  Coffin. 

House  Document,  No.  1121.  Feb.  16,  1903.  Report  by  Messrs.  Rogerson, 
Lane,  Entwistle,  Begley  and  Donnelly;  Messrs.  Batchelder, 
chairman,  and  Shepardson  dissenting. 

Recount  of  Votes.  —  The  mere  closeness  of  the  vote  does  not  in  and  of  itself 
justify  a  recount  by  the  House  of  Representatives. 

Same.  —  A  change  in  the  vote  of  one  part  of  a  district  by  a  recount,  in  the 
absence  of  evidence  of  fraud  or  mistake,  cannot  be  used  to  discredit  the  accuracy 
of  the  count  of  election  officials  in  other  parts  of  the  district. 

Same.  —  Where  the  vote  in  the  district  is  close  and  a  recount  has  been  refused 
by  the  registrars  of  voters  on  account  of  a  formal  defect  in  the  petition  for  a  re- 
count, though  the  petition  was  signed  by  the  requisite  number  of  voters,  filed 
within  the  time  required  by  law,  and  notice  that  the  recount  would  be  held  had 
been  sent  to  the  petitioner  by  the  registrars;  the  House  of  Representatives  will 
recount  the  vote.  (This  in  the  minority  report  and  the  one  accepted  by  the  House, 
a  recount  being  ordered.) 

The  petition  referred  to  the  committee  in  this  case,  for  its 
action,  is  as  follows:  — 

To  the  Honorable  House  of  Representatives  of  the  Commonwealth  of  Massachusetts, 
in  General  Court  assembled. 

The  undersigned  petitioner,  Richard  Newell  of  West  Newbury,  in  the 
Second  Essex  Representative  District,  respectfully  represents  that  he  was  a 
candidate  for  representative  to  the  General  Court  at  the  last  annual  ejection, 
held  Nov.  4,  1902,  for  the  Second  Essex  Representative  District;  that  Samuel 
F.  Coffin  of  West  Newbury  was  also  a  candidate  for  the  same  office;  that 
said  Coffin  was  declared  elected  by  a  plurality  of  four  votes;  that  your  peti- 
tioner asked  for  a  recount  by  the  Board  of  Registrars  in  the  city  of  Newbury- 
port,  the  town  of  Salisbury  and  the  town  of  Merrimac  (owing  to  an  alleged 
informality  in  the  petition  for  a  recount,  the  registrars  in  the  city  of  Newbury- 


16 


MASSACHUSETTS   ELECTION   CASES  —  1903. 


port  ruled  that  they  could  not  act  on  the  petition) ;  that  in  the  town  of  Salis- 
bury the  petition  was  granted,  and  your  petitioner  gained  one  vote  which  was 
originally  counted  as  a  blank;  that  in  the  town  of  Merrimac  the  recount  was 
refused,  on  account  of  alleged  informality  in  the  petition. 

And  your  petitioner,  believing  that  a  recount  of  the  votes  cast  in  the  Second 
Essex  Representative  District  would  change  the  result  of  the  election  as 
declared,  duly  notified  the  city  and  town  clerks  of  the  district  of  his  intention 
to  contest  the  election  of  Samuel  F.  Coffin,  as  provided  in  section  266  of 
chapter  11  of  the  Revised  Laws,  and  respectfully  requests  that  your  honorable 
body  may  order  a  recount  of  the  votes  cast  for  Representative  to  the  General 
Court  on  November  4  last,  as  provided  in  section  266.  chapter  11  of  the  Revised 
Laws,  that  the  true  result  may  be  known;  and,  if  any  change  is  found,  that 
the  record  may  be  amended  in  conformity  with  the  true  result;  and,  if  so 
found,  that  your  petitioner  should  be  declared  elected. 

Richard  Newell. 

The  following  statement  of  facts  is  agreed  upon  by  all  the 
members  of  the  committee  on  Elections:  — 

The  Second  Essex  Representative  District  comprises  the  towns 
of  Salisbury,  Merrimac  and  West  Newbury  and  Ward  6  of  the 
city  of  Newbury  port. 

On  Nov.  4,  1902,  the  petitioner,  Richard  Newell  of  West 
Newbury,  was  a  candidate  for  election  to  the  House  of  Repre- 
sentatives from  the  said  Second  Representative  District.  The 
vote  in  said  district  for  Representative  for  the  Republican,  Dem- 
ocratic and  Socialist  candidates,  as  returned  by  the  election 
officers,  was  as  follows :  — 


Newell  (R.). 

Coffin  (D.). 

Bailey  (S.). 

Newburyport,  Ward  6     .        .        . 
West  Newbury          .... 

212 

148 

104 

96 

101 

202 

99 

162 

61 
65 
10 
13 

Total 

560 

564 

149 

— i 

Mr.  Newell,  within  three  days  of  the  date  of  the  State  election 
(the  time  allowed  by  statute),  filed  with  the  town  clerks  of  Merri- 
mac and  of  Salisbury,  and  with  the  city  clerk  of  Newburyport, 
petitions  asking  for  a  recount  of  votes  cast  for  representative  in 
their  respective  towns,  and  in  Ward  6  of  Newburyport. 

Mr.  Newell  was  duly  notified  in  writing,  as  the  statute  requires, 
that  the  several  boards  of  registrars  would  give  him  a  recount 


NEWELL   0.   COFFIN.      HOUSE,    1903.  17 

of  the  ballots  cast  on  Nov.  4,  1902,  for  representative  in  the 
Second  Essex  Representative  District  for  their  respective  towns, 
and  in  Newburyport  for  Ward  6  of  said  city. 

On  Friday  evening,  Nov.  7,  1902,  the  time  appointed  by  the 
board  of  registrars  of  Newburyport  for  a  recount  of  votes  for 
representative  cast  in  Ward  6  of  Newburyport  for  the  Second 
Essex  Representative  District,  both  parties  being  represented, 
the  said  board  of  registrars  refused  to  recount  the  votes,  upon 
objection  being  raised  by  counsel  for  Mr.  Coffin,  for  the  reason 
that  the  petition  was  defective.  The  following  is  a  certified 
copy  of  the  petition  filed  with  the  board  of  registrars  of  New- 
buryport. 

To  the  Honoarable  Board  of  Registrars  of  the  City  of  Newburyport. 

Gentlemen:  —  The  undersigned,  legal  voters  in  the  Second  Essex  Repre- 
sentative District,  respectfully  petition  your  honorable  board  to  make  a 
recount  of  the  votes  cast  for  representative  to  the  General  Court  in  the  sixth 
ward  of  your  city,  on  the  fourth  day  of  November,  A.D.  1902,  at  the  annual 
State  election,  for  the  reason  that  we  believe  that  the  return  of  the  votes 
made  by  the  election  officers  in  said  ward  for  the  office  of  Representative  to  the 
General  Court  may  be  erroneous,  and  thereby  affect  the  result  of  the  election 
as  returned. 

Richard  Newell,  Main  Street,  West  Newbury. 

Henry  T.  Bailey,  Main  Street,  West  Newbury. 

Walter  B.  Hopkinson,  Spring  Lane,  Newburyport. 

Somerby  N.  Noyes,  West  Newbury. 

E.  N.  Chan,  West  Newbury. 

Joseph  S.  Noyes,  West  Newbury. 

Joseph  O.  Noyes,  West  Newbury. 

Herbert  N.  Carleton,  West  Newbury. 

Geo.  H.  Bailey,  West  Newbury. 

Robert  S.  Brown,  West  Newbury. 

Essex,  ss.  Nov.  6,  1902. 

Personally  appeared  Richard  Newell,  and  made  oath  in  due  form  that  the 
above  statement  by  him  subscribed  is  true. 

Before  me, 

George  H.  Stevens, 
(Seal.)  Justice  of  the  Peace. 

True  copy  of  petition.     Attest.  George  H.  Stevens, 

City  Clerk. 

On  Saturday  evening,  Nov.  8,  1902,  the  time  appointed  by  the 
board  of  registrars  of  the  town, of  Salisbury  for  a  recount  of  the 
votes   for   representative   for    the    Second    Essex    Representative 


18  MASSACHUSETTS  ELECTION  CASES  —  1903. 

District,  cast  in  Salisbury,  both  parties  being  represented  and  no 
objection  being  raised,  a  recount  was  had,  in  which  the  petitioner 
gained  one  vote.  This  vote  was  originally  counted  as  a  blank, 
but  upon  the  recount  it  was  counted  for  Mr.  Newell  without  ob- 
jection from  either  party. 

The  following  is  a  certified  copy  of  the  petition  filed  with  the 
Board  of  Registrars  of  Salisbury :  — 

Commonwealth  of  Massachusetts. 
Essex,  ss. 

To  the  Honorable  Board  of  Registrars  of  the  Town  of  Salisbury.     * 

We,  the  undersigned  legal  voters  in  the  Second  Essex  Representative  Dis- 
trict, respectfully  petition  your  honorable  board  to  make  a  recount  of  the 
votes  cast  on  Tuesday,  Nov.  4,  A.D.  1902,  in  your  town  for  the  office  of  repre- 
sentative to  the  General  Court,  for  the  Second  Essex  Representative  District, 
for  the  reason  that  we  believe  that  the  returns  made  by  the  election  officers 
of  that  vote  may  be  erroneous,  and,  if  so,  might  change  the  result  of  the 
election  as  returned 

Richard  Newell,  West  Newbury. 

J.  Q.  A.  Pettengill,  Salisbury. 

Perkins  Merrill,  Salisbury. 

Geo.  A.  McLucas,  Salisbury. 

S.  W.  Weare,  Salisbury. 

R.  B.  Currier,  Salisbury. 

J.  S.  Merrill,  Salisbury. 

Wm.  Henry  French,  Salisbury. 

George  A.  Dow,  Salisbury. 

O.  F.  Files,  Salisbury. 

C.  B.  Frost,  Salisbury. 

Commonwealth  of  Massachusetts. 
Essex,  ss.  Salisbury,  Nov.  7,  1902. 

Then  personally  appeared  Richard  Newell,  and  made  oath  that  the  fore- 
going statement  is  true. 


Before  me, 


Wm.  H.  Greenleaf, 

Justice  of  the  Peace. 


A  true  copy.     Attest. 


Wm.  H.  Greenleaf, 
(Seal.)  Town  Clerk  of  Salisbury. 

On  Monday  evening,  Nov.  10,  1902,  the  time  appointed  by  the 
board  of  registrars  of  Merrimac  for  a  recount  of  the  votes  for 
representative  for  the  Second  Essex  Representative  District, 
cast  in  Merrimac,  both  parties  being  represented,  the  said  board 
of  registrars  refused  to  recount  the  votes,  upon  objection  being 


NEWELL  V.   COFFIN.      HOUSE,    1903.  19 

made  by  counsel  for  Mr.  Coffin,  for  the  reason  "that  the  petition 
is  not  sufficient,  under  the  statutes,  to  authorize  the  registrars 
to  make  the  recount." 

The  following  is  a  certified  copy  of  the  petition  filed  with  the 
board  of  registrars  of  Merrimac :  — ■ 

Commonwealth  of  Massachusetts. 

Essex,  ss. 

To  the  Honorable  Board  of  Registrars  of  the  Town  of  Merrimac. 

Gentlemen:  —  We,  the  undersigned,  legal  voters  in  the  Second  Essex 
Representative  District,  respectfully  petition  your  honorable  board  to  make 
a  recount  of  the  votes  cast  for  the  office  of  representative  to  the  General 
Court  at  the  annual  election  held  on  Tuesday,  Nov.  4,  A.D.  1902,  in  your 
town,  for  the  reason  that  we  believe  that  the  returns  made  by  the  election 
officers  of  that  vote  may  be  erroneous,  and,  if  so,  might  change  the  result  of 
the  election  as  returned. 

Richard  Newell,  West  Newbury. 

Frank  E.  Walker,  Merrimac,  Mass. 

Chas.  A.  Lancaster,  Merrimac,  Mass. 

Harland  G.  Little,  Merrimac,  Mass. 

Charles  H.  Judkinp,   Merrimac,   Mass. 

Fred  B.  Judkins,  Merrimac,  Mass. 

Fred  A.  Loud,  Merrimac,  Mass. 

J.  Henry  Ollis,  Merrimac,  Mass. 

D.  M.  Means,  Merrimac,  Mass. 

D.  W.  Gould,  Merrimac,  Mass. 

Chas.  E.  Welch,  Merrimac,  Mass. 

Commonwealth  of  Massachusetts. 
Essex,  ss. 

Then  personally  appeared  Richard  Newell,  and  made  oath  that  the  fore- 
going petition  by  him  subscribed  is  true. 

Before  me, 

Bailey  Sargent, 
Justice  of  the  Peace. 

Received  at  10  o'clock  a.m.,  Friday,  Nov.  7,  1902. 

Bailey  Sargent, 

Town  Clerk. 
A  true  copy.     Attest. 

Bailey  Sargent, 
(Seal.)  Town  Clerk,  Merrimac,  Mass. 

In  West  Newbury,  where  the  petitioner  was  one  of  the  select- 
men, and  as  such  acted  as  an  election  officer,  there  was  no  re- 
count asked  for  or  had. 

Mr.  Newell  testified  before  the  committee  that  he  was  satis- 
fied with  the  correctness  of  the  count  in  West  Newbury,  as  re- 


20  MASSACHUSETTS  ELECTION  CASES  —  1903. 

turned  by  the  election  officers,  and  also  of  the  recount  in  Salisbury, 
but  had  no  objection  to  a  recount  by  the  committee  of  the  votes 
cast  in  these  towns  if  the  committee  granted  his  petition. 

The  petitioner  expressly  stated  that  he  did  not  allege  any 
fraud  or  illegal  action  on  the  part  of  any  of  the  election  officers 
in  said  district,  nor  was  there  any  evidence  of  such  fraud  or  il- 
legality, nor  of  any  mistake  or  informality  on  the  part  of  the 
election  officers,  except  as  appears  from  the  recount  in  Salisbury. 

As  the  returns  to  the  Secretary  of  State  now  stand,  Mr. 
Newell  has  561,  Mr.  Coffin  564,  and  Mr.  Bailey  149  votes. 

Mr.  Newell  duly  notified  the  city  and  town  clerks  of  the  dis- 
trict, as  provided  in  section  266  of  chapter  11  of  the  Revised 
Laws,  of  his  intention  to  contest  the  election  of  Samuel  F. 
Coffin. 

Report  of  the  Majority  of  the  Committee. 

The  committee  on  Elections,  to  whom  was  referred  the  peti- 
tion of  Richard  Newell  of  West  Newbury  for  a  recount  of  the 
votes  cast  for  representative  in  the  Second  Essex  Representative 
District,  submit  the  following  report:  — 

The  committee  gave  a  hearing  to  the  parties,  at  which  the 
petitioner  appeared  pro  se,  the  sitting  member  being  represented 
by  counsel. 

The  petitioner  contends  that  he  should  be  given  a  recount:  — 

1.  Because  of  the  closeness  of  the  vote,  there  being  but  three 
votes  between  the  petitioner  and  the  sitting  member. 

2.  Because,  in  the  recount  which  was  had  in  Salisbury,  the 
petitioner  gained  one  vote  over  the  sitting  member. 

3.  Because  the  petitioner  has  been  deprived  of  a  recount  in 
Ward  6  of  the  city  of  Newburyport  and  in  the  town  of  Merrimac 
by  reason  of  the  decision  of  the  boards  of  registrars  of  Newbury- 
port and  Merrimac  that  the  petitions  filed  by  him  with  the  city 
clerk  of  Newburyport  and  the  town  clerk  of  Merrimac  were  not 
in  conformity  with  chapter  11,  section  267  of  the  Revised  Laws. 

The  first  of  these  contentions  may  be  disposed  of  very  shortly, 
it  being  the  unanimous  opinion  of  the  committee  that  mere  close- 
ness of  vote  does  not  in  and  of  itself  justify  a  recount  by  the 
House  of  Representatives,  ■ — ■  a  rule  which  has  repeatedly  been 
followed  by  former  committees,  and  endorsed  by  former  Houses. 
See  Burt  v.  Babbitt,  Mass.  E.  C,  L.  &  R.  174-175;  Austin  v. 
Sweet,  Mass.  E.  C,  L.  &  R.  189-190. 

As   to   the  second   ground  relied  upon   by  the  petitioner,   the 


NEWELL  V.  COFFIN.      HOUSE,    1903.  21 

fact  that  the  recount  in  Salisbury  differed  from  the  original 
count,  the  petitioner  gaining  one  vote  over  the  sitting  member 
by  said  recount,  cannot  be  used  to  discredit  the  accuracy  of  the 
count  of  the  election  officers  in  other  parts  of  the  district;  in 
other  words,  it  does  not  follow  that,  because  there  was  a  mistake 
in  the  count  of  the  election  officers  in  Salisbury,  there  were  also 
mistakes  in  Newburyport  or  Merrimac.  In  the  absence  of  evi- 
dence to  the  contrary,  the  presumption  is  that  the  count  of  the 
election  officers  is  correct  {McGibbons  v.  Walden,  L.  &  R.  289- 
291);  and  the  better  rule  is  that  "a  recount  of  a  portion  of  the 
district  by  the  properly  constituted  tribunal,  in  the  absence  of 
any  allegation  tending  in  the  slightest  degree  to  throw  suspicion 
upon  the  other  portions  of  the  district,  affords  no  reasonable 
ground  for  this  House  to  permit  the  recounting  of  the  balance  of 
the  district."  Kimball  v.  Tilton,  L.  &.  R.  315-318;  Collins  v. 
Cogswell,  L.  &  R.  390. 

The  third  and  main  contention  of  the  petitioner  is  that  inas- 
much as  he  made  an  honest  but  unsuccessful  attempt  to  secure 
a  recount  by  the  registrars  of  voters  in  Ward  6  in  the  city  of 
Newburyport  and  in  the  town  of  Merrimac,  —  unsuccessful  because 
of  his  ignorance  of  or  mistake  in  the  law,  —  it  now  becomes 
the  duty  of  this  House  to  impose  upon  your  committee  the  task 
of  recounting  the  votes  in  the  Second  Essex  Representative 
District.  Revised  Laws,  chapter  11,  section  267,  sets  forth  in 
clear  and  explicit  language  the  conditions  upon  which  recounts 
by  the  registrars  of  voters  shall  be  granted.  With  these  condi- 
tions the  petitioner  did  not  comply,  as  appears  from  the  copies 
of  the  petitions  which  are  made  a  part  of  the  statement  of  facts 
agreed  upon  by  all  the  members  of  the  committee,  and  he  was 
therefore  refused  a  recount  except  in  Salisbury,  where  no  ob- 
jection was  raised.  In  the  opinion  of  the  committee,  the  action 
taken  by  the  registrars  in  this  matter  was  correct;  and,  even 
were  it  otherwise,  we  do  not  conceive  it  to  be  within  the  province 
of  a  committee  on  elections  to  review  the  actions  of  other  boards 
or  tribunals.  See  McGibbons  v.  Walden,  supra,  Mulchinock  v. 
Jenkins,  L.  &  R.  319.  Still  less  is  it  the  duty  of  this  committee 
to  relieve  candidates  from  the  consequences  of  their  own  errors. 

For  these  reasons,  the  majority  of  your  committee  are  of  the 
opinion  that  to  grant  a  recount  in  the  present  case  would  be  to 
place  a  premium  upon  carelessness,  and  to  establish  a  precedent 
not  in  line  with  the  decisions  of  former  committees  on  elections. 

The  committee  therefore  recommend  that  the  petitioner  have 
leave  to  withdraw. 


22  MASSACHUSETTS  ELECTION  CASES  —  1903. 


Minority  Report. 

The  committee  on  Elections  of  the  House,  to  whom  the  peti- 
tion of  Richard  Newell,  who  contests  the  seat  of  Samuel  F. 
Coffin,  was  referred,  report  "leave  to  withdraw,"  with  two  dis- 
senting members  of  the  committee.  The  dissenting  members  of 
the  committee  respectfully  submit  the  following  minority  report, 
in  which  they  set  forth  their  reasons  for  dissenting  from  the 
opinion  of  the  majority  of  the  committee,  and  also  report  recom- 
mending the  adoption  of  a  resolution  to  request  the  committee 
to  recount  the  votes  cast  in  the  Second  Essex  Representative 
District. 

Upon  an  examination  of  the  election  cases  which  have  been 
before  the  Legislature  since  1853,  it  appears  that  there  is  not 
one  like  the  present  case.  Therefore  we  have  at  the  start  no 
precedent  to  follow. 

The  majority  of  the  committee  seem  to  base  their  decision 
upon  the  principle  laid  down  in  the  case  of  Rice  v.  Welch  (L.  & 
R.  Election  Cases,  128),  which  is  that,  in  order  to  justify  the 
committee  in  going  behind  the  returns  of  the  election  officers, 
there  must  be  some  "satisfactory  preliminary  proofs  of  such 
substantial  facts  or  well-founded  causes  of  suspicion  as  would  in- 
duce strong  conviction  that  fraud  or  mistake,  prejudicial  to  the 
contestant,  might  appear  upon  such  examination;"  and  also 
from  the  principle,  with  which  the  minority  fully  agree,  that  the 
committee  should  not  recount  when  the  only  reason  alleged  is 
that  the  vote  is  close. 

If  this  were  all  there  was  in  this  case,  the  minority  of  the 
committee  would  without  any  hesitation  have  joined  with  the 
majority  in  reporting  "leave  to  withdraw;"  but  we  think  that 
this  is  not  a  case  of  mere  closeness  of  votes,  and  that  it  does  not 
belong  in  that  class  of  cases  which  hold  that  the  petitioner  must 
allege  fraud  or  mistake,  and  show  some  "satisfactory  preliminary 
proof  of  such  facts." 

Previous  to  1886  there  was  no  provision  for  the  recount  of 
votes  in  towns  by  the  boards  of  registrars  or  selectmen.  At  that 
time  (1886)  the  Legislature  passed  a  law,  which  is  almost  the 
same  as  the  present  law,  giving  a  right  of  recount  upon  the 
petition  of  ten  or  more  voters  if  filed  within  six  days. 

The  present  case  comes  under  sections  266  and  267  of  chapter 
11  of  the  Revised  Laws.  The  first  paragraph  of  section  267  (the 
only  part  of  said  section  which  concerns  this  case)  is  as  follows: — 


NEWELL  V.  COFFIN.      HOUSE,   1903.  23 

If,  on  or  before  five  o'clock  on  the  third  day  next  succeeding  the  day  of  an 
election  in  a  ward  of  a  city  or  in  a  town,  ten  or  more  voters  of  such  ward  or 
town  shall  sign,  adding  thereto  their  respective  residences  on  the  first  day  of 
May  of  that  year,  swear  to  and  file  with  the  city  or  town  clerk,  or  in  Boston 
with  the  election  commissioners,  a  statement  that  they  have  reason  to  believe 
and  do  believe  that  the  records,  or  copies  of  records,  made  by  the  election  of- 
ficers of  certain  precincts  in  such  ward  or  town,  or  in  case  of  a  town  not  voting 
by  precincts,  by  the  election  officers  of  such  town,  are  erroneous,  specifying 
wherein  they  deem  them  to  be  in  error,  and  that  they  believe  a  recount  of  the 
ballots  cast  in  such  precincts  or  town  will  affect  the  election  of  one  or  more 
candidates  voted  for  at  such  election,  specifying  the  candidates,  or  will  affect 
the  decision  of  a  question  voted  upon  at  such  election,  specifying  the  question, 
the  city  or  town  clerk  shall  forthwith  transmit  such  statement  and  the  enve- 
lopes containing  the  ballots,  sealed,  to  the  registrars  of  voters,  who  shall, 
without  unnecessary  delay,  open  the  envelopes,  recount  the  ballots  and  deter- 
mine the  questions  raised;  but  upon  a  recount  of  votes  for  town  officers  in  a 
town  in  which  the  selectmen  are  members  of  the  board  of  registrars  of  voters, 
the  recount  shall  be  made  by  the  moderator,  who  shall  have  all  the  powers 
and  perform  all  the  duties  conferred  or  imposed  by  this  section  upon  registrars 
of  voters. 

It  will  be  noticed  that  the  section  provided  that,  in  order  to 
obtain  a  recount  by  a  board  of  registrars,  the  petitioner  must 
get  ten  voters  of  the  town  or  ward  in  which  he  seeks  a  recount  to 
sign  and  swear  to  the  petition.  In  the  present  case  Mr.  Newell 
drew  up  his  petition  upon  the  advice  of  a  person  "  whom  he 
thought  to  be  a  responsible  party."  It  appears  by  the  certified 
copies  of  the  petitions  presented  to  the  committee  that  each 
petition  was  signed  by  ten  voters  of  the  Second  Essex  Repre- 
sentative District,  and  in  the  cases  of  Merrimac  and  Salisbury, 
by  ten  voters  of  each  town.  It  also  appears,  by  said  certified 
copies  of  the  petitions  for  recounts,  that  Mr.  Newell  made  oath 
to  all  of  the  petitions,  and  that  in  the  case  of  the  city  of  New- 
buryport  the  city  clerk  took  Mr.  Newell's  oath  to  the  petition 
filed  for  a  recount  of  the  votes  cast  for  representative  in  Ward  6 
of  Newburyport.  In  Salisbury  the  town  clerk  took  Mr.  Newell's 
oath  to  the  petition  filed  for  a  recount  of  the  votes  cast  for  repre- 
sentative in  that  town;  and  in  Merrimac  the  town  clerk  took 
Mr.  Newell's  oath  to  the  petition  filed  for  a  recount  of  the  votes 
cast  for  representative  in  Merrimac.  The  petitions  were  all  duly 
filed,  and  the  several  boards  of  registrars  duly  notified  Mr. 
Newell  that  they  would  give  him  a  recount  of  the  votes  cast  in 
their  respective  places,  and  informed  him  of  the  time  and  place 
when  and  where  said  recount  would  take  place.  The  town  clerk 
of  Merrimac  is  a  member  of  the  board  of  registrars  of  that 
town;    the  town  clerk  of  Salisbury  is  a  member  of  the  board  of 


24  MASSACHUSETTS  ELECTION  CASES  —  1903. 

registrars  of  Salisbury;  and  the  city  clerk  of  Newburyport  is  a 
member  of  the  board  of  registrars  of  the  city  of  Newburyport. 

At  the  time  and  place  appointed,  the  board  of  registrars  of 
Newburyport  refused  to  recount  the  votes  cast  in  Ward  6  of 
Newburyport,  for  the  reason  that  the  petition  was  defective, 
upon  objection  being  raised  by  counsel  for  Mr.  Coffin,  although 
they  had  notified  Mr.  Newell  that  they  would  recount  said 
votes. 

At  Salisbury,  at  the  time  and  place  appointed,  Mr.  Coffin 
being  represented  by  counsel,  a  recount  was  had  of  the  votes 
cast  in  Salisbury,  without  any  objection  being  raised  on  the  part 
of  any  one,  and  the  petitioner  gained  one  vote.  This  vote  was 
originally  counted  as  a  blank,  the  voter  having  made  a  mark 
instead  of  a  cross;  and  it  was  the  unanimous  opinion  of  all 
present  that  it  ought  to  have  been  counted  for  Mr.  Newell. 
The  petitions  for  a  recount  to  the  board  of  registrars  of  Salisbury 
and  Merrimac  were  alike  in  all  essential  respects. 

At  Merrimac,  at  the  time  and  place  appointed  for  a  recount, 
upon  objection  being  raised  by  counsel  for  Mr.  Coffin,  the  board 
of  registrars  refused  to  recount  the  votes  cast  in  Merrimac,  after 
having  notified  Mr.  Newell  that  they  would  recount  the  votes, 
for  the  reason  "that  the  petition  is  not  sufficient,  under  the 
statutes,  to  authorize  the  registrars  to  make  the  recount."  Mr. 
Newell  duly  notified  the  city  and  town  clerks  of  his  intention  to 
contest  the  election  of  Samuel  F.  Coffin,  as  provided  in  section 
266  of  chapter  11  of  the  Revised  Laws. 

The  question  is  simply  this:  whether  or  not  Mr.  Newell, 
having  done  what,  in  his  judgment,  acting  upon  the  advice  of 
some  one  whom  he  deemed  a  responsible  person,  was  all  that 
was  necessary;  having  filed  his  petitions  within  the  proper  time; 
having  received  notices  that  he  was  to  have  his  recounts;  having 
had  a  recount  in  part  of  the  district  (to  wit,  in  Salisbury,  upon 
a  petition  which  is  identical  with  that  filed  in  Merrimac  in  all 
essential  respects),  which  showed  a  material  change;  and  having 
complied  with  the  law  as  laid  down  in  section  266  of  chapter  11 
of  the  Revised  Laws,  should  have  a  recount  of  the  votes  cast  in 
said  district,  by  the  committee  on  Elections,  in  order  to  deter- 
mine who  is  entitled  to  the  seat  now  held  by  Mr.  Coffin. 

As  has  been  stated,  there  is  not  a  similar  case  to  be  found  in 
the  election  cases.  The  nearest  one  in  point  is  the  case  of 
McGibbons  v.  Walden,  decided  in  1877  (L.  &  R.  Election  Cases, 
289),   before  the  time  of  giving  recounts  to  towns.     This  case, 


NEWELL  V.   COFFIN.      HOUSE,    1903.  25 

which  arose  in  the  city  of  Lynn,  might,  at  a  first  glance,  be 
considered  as  identical  with  the  one  in  question.  In  McGibbons 
v.  Walden,  a  petition  for  a  recount  was  filed  with  the  mayor 
and  aldermen,  and  they  refused  to  recount,  upon  the  advice  of 
the  city  solicitor,  upon  grounds  which  the  committee  thought 
were  technical.  In  commenting  upon  this  the  majority  of  the 
committee  say:  — 

It  would  undoubtedly  have  been  much  better,  so  far  as  the  committee  are 
able  to  judge,  for  the  mayor  and  aldermen  to  have  granted  the  petition,  and 
not  have  inquired  too  closely  into  the  form  of  the  petition,  thus  following 
the  practice  of  nearly  all,  if  not  all,  the  cities  in  the  Commonwealth  in  such 
matters. 

The  committee,  however,  did  not  consider  that  it  was  a  part 
of  its  duty  to  supply  the  omission  of  other  bodies,  or  avenge  or 
redress  the  grievances  which  parties  may  have  sustained  at 
their  hand,  considered  simply  as  such. 

In  this  case  the  votes  were  actually  recounted  four  times  by 
the  election  officers  before  the  petition  was  made  to  the  mayor 
and  aldermen;  and  the  case  differs  in  this  respect  from  the  one 
before  us,  and  also  in  the  fact  that  the  mayor  and  aldermen  did 
not  first  send  notices  to  the  petitioner  that  they  would  recount 
the  votes,  and  then,  after  the  time  allowed  by  law  for  filing 
petitions  for  recounts  had  expired,  refuse  to  recount.  Recount 
was  refused  in  the  case  just  cited,  and  a  report  "leave  to  with- 
draw" made,  with  three  dissenting  members. 

From  an  opinion  given  by  the  justices  of  the  Supreme  Judicial 
Court  (quoted  below),  it  would  seem  that  a  liberal  construction 
should  be  given  to  the  requirements  of  the  law  in  this  respect. 
136  Mass.  583.     (1883.) 

If  a  statement  in  writing  is  filed  within  three  days  of  an 
election  by  ten  or  more  voters  of  a  ward,  and  it  is  accepted  and 
acted  upon  by  the  board  of  aldermen,  who  make  a  recount, 
and  the  city  clerk  transmits  this  amended  return  to  the  Secretary 
of  the  Commonwealth,  it  may  well  be  doubted  whether  it  would 
be  competent  for  the  Governor  and  Council  to  investigate  the 
regularity  of  the  action  of  the  board  of  aldermen  and  city  clerk, 
and  reject  the  return  upon  the  ground  of  some  formal  defect 
existing  in  the  original  statement  in  writing.  But,  however  this 
may  be,  we  are  of  opinion  that  the  statement  in  this  case  was 
sufficient. 

The  statute  contemplates  that  the  statement  is  to  be  made 
by  plain  people,  and  technical  and  narrow  rules  of  construction 


26  MASSACHUSETTS  ELECTION  CASES  —  1903. 

ought  not  to  be  applied  to  it.  It  is  sufficient  if  it  specifies  with 
reasonable  clearness  in  what  respect  the  returns  of  the  ward 
officers  are  supposed  to  be  erroneous. 

The  statement,  of  which  a  copy  is  given  in  the  third  question, 
states  that  the  returns  of  the  ward  officers  of  the  votes  cast  are 
believed  to  be  erroneous  in  regard  to  the  officers  of  sheriff  and 
district  attorney.  Everybody  would  understand  this  to  mean 
that  there  was  believed  to  be  a  miscount  of  the  votes  for  these 
officers.  It  is  impossible  in  the  nature  of  things  to  specify  the 
particular  errors  in  detail,  and  we  are  of  opinion  that  the  state- 
ment referred  to  was  sufficient,  and  required  the  aldermen  to 
make  a  recount. 

Having  had  a  recount  in  part  of  the  district,  the  petitioner  is 
entitled  to  a  recount  in  the  whole  district,  as  the  recount,  so  far 
as  it  was  had,  changed  the  original  count. 

In  the  case  of  Haskell  v.  Closson  (L.  &  R.  Election  Cases, 
233),  a  recount  was  granted  by  the  House  of  Representatives 
even  after  a  recount  of  a  part  of  the  district  had  been  im- 
properly taken.  Upon  a  recount  being  had,  the  petitioner  was 
found  to  be  elected. 

In  the  case  of  Kimball  v.  Tilton  (L.  &  R.  Election  Cases, 
315)  by  the  returns  of  the  ward  officers  of  Haverhill,  Kimball 
was  elected.  By  a  recount  of  Haverhill,  the  election  was  given 
to  Tilton.  The  petitioner  then  asked  for  and  received  a  recount 
by  the  committee  on  Elections  of  the  whole  district. 

Claflin  v.  Wood  (L.  &  R.  Election  Cases,  353)  was  another  case 
where  part  of  the  district  had  been  recounted;  and  upon  a 
recount  by  the  committee  on  Elections  there  was  a  change  in 
the  vote  of  part  of  the  district.  "It  seemed  to  the  committee 
not  improbable  that  a  mistake  might  have  been  made,  and 
especially  as  the  majority  in  the  whole  district  was  so  small, 
they  decided  to  recount  the  votes  of  the  district."  The  result 
of  the  recount  in  this  case  was  that  the  petitioner  received  more 
votes  than  the  seated  member,  and  the  committee  reported  a 
resolution  declaring  that  the  petitioner  was  elected;  but  the 
resolution  was  rejected  by  the  House. 

Thus  we  see  that  in  several  cases  the  recounts,  where  there 
has  been  a  partial  recount,  have  resulted  in  a  plurality  vote 
for  the  petitioner. 

In  conclusion,  we  declare  that  we  are  utterly  unable  to  find  a 
case  in  which  the  committee  of  the  House  of  Representatives  has 
refused  to  recount  the  votes  of  a  representative  district  where 
the  petitioner  had  asked  for  recounts  in  the  various  places  of 


NEWELL  V.   COFFIN.      HOUSE,    1903.  27 

his  district,  had  been  notified  that  the  recounts  would  be  granted, 
and  had  then  been  thrown  out  on  technical  grounds.  It  has 
been  established  by  the  opinion  of  the  Supreme  Court,  quoted 
above,  that  the  statute  contemplates  "that  the  statement  is  to 
be  made  by  plain  people,  and  technical  and  narrow  rules  of 
construction  ought  not  to  be  applied  to  it." 

It  will  be  admitted  by  all  that  it  is,  in  a  sense,  immaterial, 
so  far  as  the  merits  of  this  case  are  concerned,  whether  the 
district  is  represented  by  Mr.  Coffin  or  Mr.  Newell,  as  both 
are  men  of  the  highest  integrity;  but  it  seems  to  the  minority 
of  the  committee  that  the  voters  of  the  district  should  have  a 
right  to  know  who  is  entitled  to  the  seat  now  held  by  Mr. 
Coffin,  and  there  is  no  way  to  determine  this  except  by  re- 
counting the  ballots. 

This,  as  the  minority  view  the  matter,  is  the  only  course  which 
would  result  in  justice  to  all  the  parties  concerned;  and  there- 
fore they  recommend  the  passing  of  the  following  resolution:  — 

Resolved,  That  the  committee  on  Elections  be  and  hereby  is  instructed  to 
send  for  and  recount  the  ballots  cast  for  representatives  to  the  General  Court 
from  the  Second  Essex  Representative  District  at  the  election  held  in  said 
district  Nov.  4,  1902,  and  to  report  the  result  of  such  recount  to  the  House  of 
Representatives . 

[Report  of  committee  negatived,  February  18,  and  resolve, 
instructing  committee  to  recount  the  ballots,  substituted.  — 
House  Journal,  p.  405. 

After  recount,  resolution  declaring  Newell  elected  adopted 
March  2.  —  House  Journal,  p.  482.] 


28  MASSACHUSETTS  ELECTION  CASES  —  1904. 


House  —  1904. 

Committee  on  Elections.  —  Messrs.  Frank  Sieberlich  of  Boston,  chairman; 
William  H.  J.  Hayes  of  Lowell,  Peter  F.  Ward  of  Fitchburg,  Horace 
R.  Drinkwater  of  Braintree,  clerk,  Alfred  S.  Hall  of  Revere,  Otto 
Mueller  of  Lawrence  and  Edward  E.  Clark  of  Cambridge. 

Herbert  S.  Riley  v.  Henry  M.  Aldrich. 

House  Document,  No.  343.     Jan.  25,  1902.     Report  by  all  the  committee. 

Marking  of  Official  Ballot.  —  Ballots  where  cross  marks  in  the  squares  opposite 
the  names  of  the  candidates  were  not  so  clearly  defined  as  the  rest  of  the  ballot,  in 
absence  of  evidence  of  erasure,  will  be  counted. 

Same.  —  Ballot  marked  with  two  oblique  strokes  in  the  square'  opposite  the 
name  of  the  candidate,  forming  a  rude  letter  Y,  will  be  counted. 

Same.  —  Ballot  marked  with  two  oblique  strokes  in  the  square  opposite  the 
name  of  the  candidate,  which,  if  they  had  intersected  would  have  formed  a  letter 
Y,  will  be  counted.  , 

Same.  —  Ballot  where  intersection  of  cross  marks  was  upon  lower  line  of  square, 
opposite  the  name  of  the  candidate,  a  blank  space  being  next  below,  will  be  counted. 

Same.  —  Ballots  with  single  stroke  in  the  square  will  be  counted. 

Same.  —  Ballots  with  two  single  strokes  in  the  square,  like  the  figure  11,  will 
be  counted. 

Same.  —  Ballot  with  caret,  or  inverted  V,  in  the  square  will  be  counted. 

Same.  —  Ballots  with  cross  mark  between  residence  and  political  designation 
will  be  counted. 

Same.  —  Ballot  where  pencil  had  injured  paper  in  marking,  mark  being  in  the 
proper  place,  will  be  counted. 

Same.  —  A  ballot  having  crosses  in  the  squares  opposite  the  names  of  the  two 
Democratic  candidates,  and  another  cross  in  the  space  above  the  heading  "Rep- 
resentative to  General  Court."  the  cross  above  the  space  was  ignored  and  the 
ballot  counted. 

Same.  —  Ballot  with  mark  in  square  opposite  the  name  of  the  candidate,  re- 
sembling an  inverted  Y,  will  be  counted. 

Same.  —  Ballot  with  cross  in  the  square  opposite  the  name  of  the  candidate, 
marked  over  with  the  figure  2,  will  be  counted. 

Voter,  Intention  of.  —  If  the  intention  of  the  voter  can  be  determined  from  an 
inspection  of  the  ballot,  that  intention  must  prevail.  In  other  words,  if  it  be 
reasonably  clear  for  whom  the  voter  intended  to  vote,  the  ballot  must  be  so  counted. 

The  committee  on  Elections,  to  whom  was  referred  the  petition 
of  Herbert  S.  Riley  "that  he  may  be  declared  duly  elected 
member  of  the  House  of  Representatives  from  the  Twenty- 
eighth  Middlesex  district"  in  place  of  the  present  sitting  mem- 
ber, submits  the  following  report:  — 

The  above  petition  was  received  Jan.  8,  1904,  referred  to  the 
committee  on  the  same  date,  and  a  hearing  given  January  12. 


RILEY  V.  ALDRICH.      HOUSE,    1904.  29 

The  above  district  is  composed  of  the  city  of  Woburn  and  the 
town  of  Reading,  and  is  entitled  to  two  representatives. 
The  petitioner  alleged  that  — 

At  an  election,  held  Nov.  3,  1903,  in  the  city  of  Woburn  and  the  town  of 
Reading,  comprising  the  Twenty-eighth  Middlesex  Representative  District, 
your  petitioner  was  one  of  the  candidates  for  the  General  Court  from  said 
district. 

The  return  of  the  votes  cast  at  said  election,  made  by  the  election  officers 
in  said  city  of  Woburn  and  said  town  of  Reading,  gave  your  petitioner  1,385 
votes,  and  Henry  M.  Aldrich  1,374  votes. 

Upon  a  recount  of  the  votes  cast  for  representative  to  the  General  Court  in 
said  district  by  the  registrars  of  voters  in  said  city  of  Woburn  and  in  said 
town  of  Reading  the  vote  was  declared  to  be  as  follows:  Henry  M.  Aldrich, 
1,383  votes,  and  Herbert  S.  Riley,  1,382  votes. 

At  said  recount  a  sufficient  number  of  votes  were  wrongly  counted  for  said 
Henry  M.  Aldrich,  and  a  sufficient  number  of  votes  were  wrongly  counted  as 
blanks  which  should  have  been  counted  for  said  Herbert  S.  Riley,  to  have 
given  your  petitioner  a  majority  of  the  votes  cast  and  have  elected  him. 

Wherefore  your  petitioner  prays  that  such  action  may  be  taken  as  may  be 
necessary  so  that  he  may  be  declared  elected  as  representative  to  the  General 
Court  from  said  Twenty-eighth  Middlesex  Representative  District,  and  be 
seated  in  the  place  of  said  Henry  M.  Aldrich. 

Herbert  S.  Riley. 


It  is  provided  by  the  Constitution  of  the  Commonwealth, 
chapter  1,  section  III,  Article  X,  that  "The  House  of  Repre- 
sentatives shall  be  the  judge  of  the  returns,  elections  and  quali- 
fications of  its  own  members;"  and  as  evidence  was  received 
showing  that  the  decision  of  the  registrars  of  Woburn  upon  cer- 
tain ballots  had  been  in  direct  opposition  to  the  decision  of  the 
registrars  of  Reading  upon  the  same  type  of  ballot,  the  commit- 
tee decided  that  the  proper  course  to  pursue  was  to  see  the 
ballots  and  determine  the  question  for  itself. 

A  count  of  all  the  ballots  was  made,  during  which  count  all 
informal  ballots  were  thrown  out,  to  be  considered  separately. 

Of  the  properly  marked  ballots,  it  was  found  that  Woburn 
had  given  Henry  M.  Aldrich  1,251  votes  and  Herbert  S.  Riley 
838,  while  Reading  had  given  said  Aldrich  122  votes  and  said 
Riley  534. 

The  ballots  which  had  been  put  to  one  side  as  informal,  num- 
bering thirty-one,  were  next  considered,  and  were  counted  as 
follows :  — 

Nos.  1,  10,  18  were  ballots  where  cross  marks  in  the  squares 
opposite  the  names  of  Aldrich  and  Riley  were  not  so  clearly  de- 


30  MASSACHUSETTS  ELECTION  CASES  —  1904. 

fined  as  the  rest  of  the  ballot,  but  without  evidence  of  erasure. 
Aldrich,  2;   Riley,  1. 

No.  19  was  a  ballot  consisting  of  two  oblique  strokes  in  square, 
forming  a  rude  letter  Y.    Riley,  1. 

No.  14  was  a  ballot  consisting  of  two  oblique  strokes  in  square, 
which,  if  they  had  intersected,  would  have  formed  a  letter  Y. 
Riley,  1. 

Nos.  17,  30,  31  were  ballots  where  intersections  of  the  cross 
marks  were  just  above  the  lower  line  of  square,  but  so  close  as  to 
appear  to  be  on  the  line,  except  upon  close  scrutiny.  Aldrich, 
1;  Riley,  2. 

No.  12  was  a  ballot  where  intersection  of  cross  marks  was  upon 
lower  line  of  square,  a  blank  space  being  next  below  name  of 
candidate.     Riley,  1. 

Nos.  2,  3,  4,  20,  28  were  ballots  with  a  single  stroke  in  square. 
Aldrich,  1;  Riley,  4. 

Nos.  7,  27  were  ballots  with  two  parallel  strokes  in  square, 
like  figure  11.     Riley,  2. 

Nos.  8,  16,  24,  25,  26  were  ballots  which  upon  inspection  were 
so  clearly  erasures  that  neither  side  cared  to  enter  claim. 

No.  29  was  a  ballot  with  caret,  or  inverted  V,  in  the  square. 
Riley,  1. 

Nos.  9,  15  were  ballots  with  cross  in  square  opposite  name  of 
Aldrich,  and  an  erasure  in  square  opposite  name  of  Riley. 
Counted  Aldrich,  2. 

Nos.  5,  11  were  ballots  with  cross  between  residence  and  polit- 
ical designation.    Aldrich,  2. 

No.  21  was  a  ballot  where  pencil  had  injured  paper  in  marking, 
mark  being  in  proper  place.    Riley,  1. 

No.  23  was  a  ballot  having  crosses  in  squares  opposite  names 
of  Aldrich  and  Flint,  the  two  Democratic  candidates,  and 
another  cross  in  the  space  above  the  heading  "Representative  to 
General  Court." 

Following  the  precedent  established  in  Morgan  et  al.,  peti- 
tioners, House,  1896,  the  cross  made  above  the  space  was 
ignored  and  the  ballot  counted  Aldrich  1. 

No.  6  was  a  ballot  with  mark  in  square,  somewhat  resembling 
an  inverted  Y.     Aldrich,  1. 

No.  13  was  a  ballot  containing  in  the  square  a  cross  which 
had  been  marked  over  with  a  figure  2.     Aldrich,  1. 

No.  22  was  a  ballot  with  single  oblique  stroke  between  resi- 
dence and  political  designation  of  Herbert  S.  Riley,  no  other 
mark   appearing   anywhere   upon   the   ballot.      Not   counted,    as 


RILEY  V.   ALDRICH.      HOUSE,    1904. 


31 


the  fact  that  the  petitioner  had  a  plurality  of  two  votes  without 
it  made  it  unnecessary  for  the  committee  to  take  action  re- 
garding this  ballot. 

This  count  of  the  informal  ballots  shows  Aldrich  to  have 
received  11  votes  and  Riley  14,  making  the  total  vote  in  the 
district  for  each  candidate  to  appear  as  follows :  — ■ 


Aldrich. 

Riley. 

Woburn 

Reading      .        .       .        .        .        .        . 

Informal  ballots 

1,251 

122 

11 

838 

534 

14 

Total 

1,384 

1,386 

The  principle  upon  which  the  committee  based  its  decisions 
regarding  the  different  ballots  is  a  principle  which  has  become 
well  established  in  this  Commonwealth,  and  briefly  is  as  follows: 
"If  the  intention  of  the  voter  can  be  determined  from  an  in- 
spection of  the  ballot,  that  intention  must  prevail."  In  other 
words,  if  it  be  reasonably  clear  for  whom  the  voter  intended  to 
vote,  the  ballot  must  be  so  counted. 

The  committee,  therefore,  finds  that  at  an  election  held 
Nov.  3,  1903,  in  the  city  of  Woburn  and  the  town  of  Reading, 
Henry  M.  Aldrich  received  1,384  votes  and  Herbert  S.  Riley 
received  1,386  votes. 

They  therefore  unanimously  recommend  that  the  petitioner  be 
declared  duly  elected  representative  from  the  Twenty-eighth 
Middlesex  Representative  District. 


[The  report  of  the  committee  was  accepted. 
1904,  p.  125.] 


House  Journal, 


32  MASSACHUSETTS  ELECTION  CASES  —  1907. 


House  —  1907. 

Committee  on  Elections.  —  Messrs.  William  M.  Dean  of  Taunton,  chairman; 
David  P.  Keefe  of  Fall  River,  Ernest  H.  Pierce  of  Revere,  Melvin 
S.  Nash  of  Hanover,  clerk,  Samuel  H.  Holman  of  Attleboro,  William 
F.  Murray,  Jr.,  of  Boston  and  Andrew  F.  Healy  of  Holyoke. 

George  M.  Lambert  v.  Herbert  M.  Forristall. 

House  Document,  No.  884.    Jan.  22,  1907.    Report  by  all  the  committee. 

Recount  by  House  of  Representatives.  —  The  House  of  Representatives  will  exer- 
cise the  right  to  recount  the  ballots  upon  satisfactory  preliminary  proof  of  such 
substantial  facts  or  well-grounded  causes  of  suspicion  as  would  induce  strong 
conviction  that  fraud  or  mistake  prejudicial  to  the  contestant  might  appear  upon 
such  examination. 

The  committee  on  Elections,  to  whom  was  referred  the  peti- 
tion of  George  M.  Lambert  "that  he  may  be  declared  elected 
a  representative  to  the  General  Court  from  the  Fifteenth  Essex 
District"  in  the  place  of  Herbert  M.  Forristall,  the  present 
sitting  member,  submits  the  following  report:  — 

The  above  petition  was  received  Jan.  4,  1907,  and  referred  to 
the  committee  on  the  same  date;  and  on  Jan.  8,  1907,  it  was 
ordered  by  the  House  of  Representatives  that  the  committee  on 
Elections  be  authorized  to  send  for  persons  and  papers  in  the 
consideration  of  the  foregoing  petition.  Pursuant  to  the  afore- 
said order  Joseph  W.  Atwill,  the  city  clerk  of  Lynn;  Joseph  W. 
Haines,  Philip  Smith,  Joseph  D.  A.  Healey,  the  registrars  of 
voters  of  Lynn;  Henry  A.  Parker,  the  town  clerk  of  Saugus; 
J.  Wesley  Paul,  Daniel  S.  Bannon  and  Peter  J.  Flaherty,  the 
board  of  registrars  of  Saugus;  the  petitioner,  Mr.  George  M. 
Lambert,  and  the  respondent,  Mr.  Herbert  M.  Forristall,  were 
duly  summoned  to  appear  before  the  committee  at  a  hearing 
which  was  accordingly  held  Jan.  15,  1907.  Mr.  Forristall  was 
represented  by  Benjamin  N.  Johnson,  Esq.,  of  Lynn,  and  Mr. 
Lambert  was  represented  by  Henry  C.  Atwill,  Esq.,  of  Lynn,  and 
afterward  by  H.  Heustis  Newton,  Esq.,  of  Everett. 

The  Fifteenth  Essex  Representative  District  is  composed  of 
Ward  6  in  the  city  of  Lynn,  and  the  town  of  Saugus,  and  is  a 
double  district. 

The  petitioner  alleged  "that  on  the  sixth  day  of  November, 


LAMBERT  V.   FORRISTALL.      HOUSE,    1907.  33 

1906,  and  for  more  than  a  year  preceding  said  sixth  day  of 
November,  he  was  an  inhabitant  and  a  qualified  voter  of  Ward  6 
in  the  city  of  Lynn,  in  said  county  and  Commonwealth,  and  that 
he  has  since  continued  and  now  is  an  inhabitant  and  qualified 
voter  of  said  ward;  that  at  the  annual  State  election  held  on 
said  sixth  day  of  November,  1906,  in  said  Ward  6  of  the  city  of 
Lynn,  and  the  town  of  Saugus,  comprising  the  Fifteenth  Essex 
Representative  District,  your  petitioner  was  one  of  the  candidates 
for  representative  to  the  General  Court  from  said  district;  that 
the  return  of  the  votes  cast  at  said  election  made  by  the  election 
officers  in  said  ward  and  town  of  Saugus  gave  your  petitioner 
1,403  votes,  Herbert  M.  Forristall  1,409  votes,  James  A.  Halliday 
1,368  votes,  and  Philip  A.  Kiely  1,573  votes,  and  upon  a  recount 
of  the  votes  so  cast  at  said  election  in  said  district  by  the  regis- 
trars of  voters  in  said  city  of  Lynn  and  the  registrars  of  voters 
in  said  town  of  Saugus  the  vote  was  declared  to  be  as  follows: 
Herbert  M.  Forristall  1,402,  James  A.  Halliday  1,368,  Philip  A. 
Kiely  1,577  and  George  M.  Lambert  1,400;  that  at  said  recount 
of  the  votes  in  Saugus  a  ballot  with  a  mark  in  the  square  at  the 
right  of  the  name  of  the  petitioner,  which  clearly  indicated  an 
intention  of  the  voter  to  vote  for  your  petitioner,  was  thrown 
out  and  not  counted  by  the  said  registrar  of  voters  in  said  town 
of  Saugus,  and  that  two  ballots  where  a  cross  had  been  placed 
in  the  square  at  the  side  of  the  name  of  said  Philip  A.  Kiely  and 
erased  by  the  voter  and  a  cross  marked  in  the  square  at  the 
side  of  the  name  of  your  petitioner,  which  clearly  indicated  in 
each  case  an  intention  of  the  voter  to  vote  for  your  petitioner, 
were  thrown  out  and  not  counted  by  said  registrars  in  the  town 
of  Saugus,  and  that  other  votes  were  wrongly  counted  as  blanks, 
by  the  said  registrars  of  voters  in  the  city  of  Lynn  and  the  said 
registrars  of  voters  in  the  town  of  Saugus,  which  should  have 
been  counted  for  your  petitioner;  and  that  said  ballots  so 
thrown  and  counted  as  blanks,  counted  for  your  petitioner, 
would  give  him  a  plurality  of  votes  over  the  said  Herbert  M. 
Forristall  and  would  elect  him." 

At  the  aforesaid  hearing  the  committee  proceeded  to  hear  the 
evidence  relative  to  the  aforesaid  allegations,  and  it  appearing 
that  those  ballots  where  the  choice  of  the  voter  could  not  be 
determined,  and  where  a  voter  had  marked  more  names  than 
there  were  persons  to  be  elected,  had  not  been  separated  from 
the  others  and  marked  "defective"  in  the  manner  prescribed  by 
statute,  and  there  being  such  satisfactory  preliminary  proof  of 
such  substantial  facts  and  well-grounded  causes    of    suspicion  as 


34 


MASSACHUSETTS  ELECTION  CASES 


1907. 


would  induce  strong  conviction  that  mistake,  prejudicial  to  the 
petitioner,  might  appear  upon  examination,  the  committee 
voted  to  proceed  to  count  the  ballots. 

A  count  of  all  the  ballots  was  made,  and  during  the  recount 
any  ballot  objected  to  by  the  petitioner  or  the  respondent  was 
laid  aside  as  an  informal  ballot  to  be  acted  upon  by  the  com- 
mittee after  hearing  the  arguments  of  counsel  upon  the  same. 

The  result  of  the  recount  is  as  follows :  — 


Forristall. 

Lambert. 

Saugus        .       .       

1,041 
369 

949 
454 

Total 

i                                               ■         

1,410 

1,403 

Informal  or  defective  ballots,  8.  No  action  was  taken  by  the 
committee  on  these  ballots,  for  the  reason  that  Mr.  Forristall's 
plurality  is  sufficient  to  elect,  in  spite  of  any  decision  that 
might  be  reached  concerning  them,  and  counsel  for  petitioner 
and  respondent  agreed  to  the  same. 

The  committee,  therefore,  finds  that  at  an  election  held  Nov. 
6,  1906,  in  Ward  6  of  the  city  of  Lynn,  and  in  the  town  of 
Saugus,  Herbert  M.  Forristall  received  1,410  votes  and  George 
M.  Lambert  received  1,403. 

They  therefore  unanimously  recommend  that  the  petitioner 
have  leave  to  withdraw. 


[The  report  of  the  committee  was  accepted.  —  House  Journal, 
p.  209.] 


MOORE  V.  BOOTH.      HOUSE,    1910.  35 


House  —  1910. 

Committee  on  Elections.  —  Messrs.  Clarence  A.  Warren  of  Chelsea,  chair- 
man; Amos  T.  Saunders  of  Clinton,  Charles  C.  Mellen  of  Braintree, 
David  T.  Montague  of  Boston,  clerk,  Timothy  F.  Callahan  of  Boston, 
David  Mancovitz  of  Boston  and  David  B.  Shaw  of  Boston. 

Fred  Moore  v.  William  Booth. 

House  Document,  No.  259.    Jan.  18,  1910.    Report  by  all  the  committee. 

Recount  by  House  of  Representatives.  —  Where  there  is  evidence  that  a  mistake 
has  been  made  in  a  recount  in  determining  the  result  of  a  vote  for  representative 
the  House  of  Representatives  will  recount  the  ballots. 

Same.  —  The  House  of  Representatives  will  not  recount  the  ballots  in  a  dis- 
trict, where  the  petitioner  has  not  availed  himself  of  his  statutory  rights  in  respect 
to  a  recount,  unless  he  was  prevented  from  doing  so  by  the  fraud  of  his  opponent 
or  by  some  cause  beyond  his  control. 

Marking  of  Official  Ballot.  —  A  ballot  where  the  lines  of  intersection  run  in 
opposite  directions  but  intersect  in  the  square  opposite  the  name  of  a  candidate, 
although  the  cross  is  not  complete  and  one  line  does  not  pass  the  point  of  inter- 
section, will  be  counted  for  that  candidate. 

Same.  —  Where  the  ballot  was  marked  with  a  perfect  cross  throughout,  except 
for  one  candidate,  in  the  square  opposite  whose  name  appeared  a  line  like  the 
second  stroke  of  a  cross,  around  and  upon  a  part  of  which  appeared  a  circle,  the 
ballot  will  not  be  counted  for  such  candidate,  as  such  an  unusual  mark  will  be 
deemed  to  have  some  significance  and  might  have  been  intended  for  a  mutilation 
of  the  cross  which  had  been  made,  and  therefor  the  intention  of  the  voter  is  not 
clear. 

The  committee  on  Elections,  to  whom  was  referred  the  peti- 
tion of  Fred  Moore  that  he  may  be  declared  a  duly  elected 
representative  from  the  Ninth  Bristol  Representative  District, 
report  as  follows :  — 

The  petition  referred  to  the  committee  is  as  follows:  — 

To  the  Honorable  Senate  and  House  of  Representatives  of  the  Commonwealth  of 
Massachusetts  in  General  Court  assembled. 

The  undersigned  petitioner,  a  citizen  of  Fall  River  in  this  Commonwealth, 
respectfully  represents  that  at  an  election  held  Nov.  2,  1909,  in  Wards  1 
and  2  in  Fall  River,  and  in  the  town  of  Westport,  comprising  the  Ninth 
Bristol  Representative  District,  the  petitioner  was  one  of  the  candidates 
for  the  office  of  representative  to  the  General  Court  from  said  district. 

The  count  of  votes  by  the  election  officers  cast  at  said  election  from  the 
said  district  gave  to  the  petitioner,  Fred  Moore,  1,587,  to  William  Gifford, 
1,720,  to  William  Biltcliffe  1,116,  and  to  William  Booth  1,579  votes. 

Upon  a  recount  of  Wards  1  and  2  in  Fall  River  by  the  registrars  of  voters 
for  the  city  of  Fall  River  upon  the  petition  of  William  Booth,  the  vote  was 


36 


MASSACHUSETTS  ELECTION  CASES  —  1910. 


declared  to  be  1,523  votes  for  William  Booth  and  1,526  votes  for  the  peti- 
tioner, giving  the  said  William  Booth  a  lead  of  one  vote,  over  the  petitioner, 
Fred  Moore,  in  the  entire  district  without  recounting  the  votes  cast  in  the 
town  of  Westport. 

The  said  William  Booth  took  out  a  petition  for  a  recount  in  the  town  of 
Westport,  and  represented  to  the  petitioner  that  a  recount  will  be  held  in 
said  town,  but  the  petition  was  never  returned,  and  no  recount  was  held. 

The  registrars  of  voters  thereupon  declared  the  said  William  Gifford  and 
William  Booth  to  be  the  successful  candidates,  basing  their  decision  upon 
the  recount  in  Wards  1  and  2  in  Fall  River,  and  the  original  vote  in  the  town 
of  Westport,  and  certified  to  the  same. 

In  said  recount  in  Wards  1  and  2  in  Fall  River  there  were  a  sufficient  number 
of  votes  wrongly  counted  for  said  William  Booth,  and  a  sufficient  number  of 
votes  wrongly  counted  as  blank  by  said  registrars  of  voters,  which  in  each  case 
should  have  been  counted  for  the  petitioner,  to  have  given  him  a  majority 
of  votes  and  elected  him. 

At  said  recount  the  said  petitioner,  Fred  Moore,  duly  excepted  to  the 
wrongly  counted  ballots,  alleging  that  three  of  the  ballots  counted  as  blank 
should  have  been  counted  for  the  petitioner,  in  that  said  ballots  contained 
crosses  to  the  right  of  the  name  of  the  petitioner,  but  not  in  the  square;  and 
the  said  petitioner  further  excepted  to  ballots  counted  for  Booth,  which 
ballots  were  mutilated  or  spoiled.  Said  ballots  are  found  in  Ward  1,  Pre- 
cinct A,  blocks  8  and  13;  Ward  1,  Precinct  B,  blocks  9,  10  and  11;  Ward  2, 
Precinct  A,  block  7;   and  in  Ward  2,  Precinct  B,  block  17. 

Wherefore  your  petitioner  prays  that  such  action  may  be  taken  as  may  be 
necessary  so  that  he  may  be  declared  elected  as  representative  to  the  General 
Court  from  said  Ninth  Bristol  Representative  District,  and  be  seated  in 
place  of  said  William  Booth. 

Fred  Moore. 


The  Ninth  Bristol  Representative  District  is  composed  of 
Wards  1  and  2  of  Fall  River,  and  the  town  of  Westport,  and  is 
entitled  to  two  representatives.  At  the  State  election,  held 
Nov.  2,  1909,  William  Biltcliffe,  Democrat;  William  Booth, 
Republican;  William  H.  Gifford,  3d,  Democrat;  and  Fred 
Moore,  Republican,  were  candidates  for  representative,  and  each 
received,  according  to  the  returns  made  to  the  Secretary  of 
State,  after  a  recount  had  been  held  of  the  votes  cast  in  Wards 
1  and  2  of  Fall  River,  the  number  of  votes  appearing  under  their 
respective  names. 


Biltcliffe. 

Booth. 

Gifford. 

Moore. 

Fall  River,  Wards  1  and  2     . 
Westport 

1,099 
18 

1,523 
61 

1,502 
214 

1,526 

57 

Total 

1,117 

1,584 

1,716 

1,583 

MOORE  V.  BOOTH.      HOUSE,   1910.  37 

William  Booth  and  William  H.  Gifford  were  declared  elected, 
and  a  certificate  of  election  was  issued  to  each  of  them.  The 
sitting  member  was  apparently  elected  by  a  majority  of  one 
vote,  and  the  committee  found,  upon  the  evidence  offered,  the 
truth  of  which  was  admitted  by  Booth,  that  at  the  recount 
of  the  votes  cast  in  Wards  1  and  2  of  Fall  River,  the  registrars 
of  voters  had  refused  to  count  for  Moore  a  sufficient  number 
of  votes  upon  which  a  cross  appeared  opposite  his  name,  but 
between  his  name  and  the  square  provided  therefor,  to  have 
given  him  a  majority.  The  committee  were  of  opinion  that  a 
mistake  had  probably  been  made  in  determining  the  result  of 
the  vote  for  representative  in  Wards  1  and  2  of  Fall  River  by 
the  registrars  of  voters,  and  ruled  that  the  petitioner  was  en- 
titled to  have  the  votes  cast  in  said  wards  recounted,  which  the 
committee  proceeded  to  do  in  the  presence  of  the  parties  and 
their  respective  counsel. 

During  the  progress  of  the  recount  by  the  committee,  ballots 
to  the  number  of  12  were  set  aside  and  not  then  counted  at  the 
request  of  one  party  or  the  other.  Exclusive  of  the  12  ques- 
tioned ballots,  the  vote  in  said  wards,  as  between  the  petitioner 
and  the  sitting  member,  is  Booth  1,522  and  Moore  1,521,  which 
is  the  total  found  by  the  committee  and  by  each  of  the  parties, 
who  have  agreed  with  the  committee  that  those  figures  are 
correct. 

It  is  the  opinion  of  the  committee  that  none  of  the  12  ques- 
tioned ballots  should  be  rejected  in  whole  or  in  part  for  any 
technical  non-compliance  with  statute  requirements,  and  that  if 
from  an  examination  of  the  face  of  the  entire  ballot  the  intent 
of  the  voter  can  be  fairly  ascertained,  effect  should  be  given  to 
that  intent  and  the  vote  counted  in  accordance  therewith. 
Strong,  Petitioner,  20  Pick.  484;  Flanders  v.  Roberts,  182  Mass. 
524;  Brewster  v.  Sherman,  195  Mass.  222;  Woodward  v.  S arsons, 
R.  L.  10,  C.  P.  733;  Shepard  v.  Sears,  Mass.  Election  Cases 
(Ed.  1885-1902),  p.  30;  Adams  v.  Moore,  Mass.  Election  Cases 
(Ed.  1885-1902),  p.  79. 

Counsel  for  the  seated  member  claimed  that  the  decisions 
sustaining  this  doctrine  were  all  rendered  prior  to  the  passage 
of  the  present  election  law  (chapter  560  of  the  Acts  of  the 
year  1907),  and  that  the  construction  of  the  later  act  differed 
from  that  of  the  law  which  was  in  force  at  the  time  of  those 
decisions.  This  act  was  not  the  enactment  of  new  law,  but, 
as  its  title  states,  "  An  Act  to  codify  the  laws  relating  to  caucuses 


38  MASSACHUSETTS  ELECTION  CASES  —  1910. 

and  elections,"  and  sections,  231,  260  and  271  are  exactly  the 
same  in  substance  and  phraseology,  so  far  as  they  affect  matters 
now  in  question,  as  the  earlier  statutes,  which  were  in  force 
when  the  later  of  the  foregoing  decisions  were  rendered. 

The  committee  have  accordingly  counted  for  the  petitioner 
three  crosses  opposite  his  name  but  between  his  name  and  the 
square,  where  the  entire  ballot  was  marked  in  the  same  way. 
Jones  v.  Loring,  Mass.  Election  Cases  (Ed.  1885-1902),  p.  36; 
Adams  v.  Moore,  ubi  supra;  Riley  v.;  Aldrich,  Mass  House  of 
Representatives,  1904. 

Two  votes  were  counted  for  Moore  and  two  for  Booth  which 
were  marked  for  them  by  an  oblique  line  at  an  angle  of  about 
45  degrees  in  the  square  opposite  the  name  of  the  candidate, 
where  each  ballot  was  marked  in  the  same  manner  throughout 
or  in  so  far  as  they  were  marked  at  all.  In  each  case  it  is  per- 
fectly clear  that  the  mark  was  intended  to  express  the  choice 
of  the  voter,  and  should  be  counted  accordingly.  Riley  v. 
Aldrich,  ubi  supra;   Brewster  v.  Sherman,  195  Mass.  222. 

On  two  ballots  the  voters  had  made  a  cross  opposite  the  names 
of  more  candidates  for  representative  than  were  to  be  elected, 
but  one  of  the  marks  had  been  clearly  obliterated  on  each  ballot, 
and  the  cross  opposite  the  name  of  the  petitioner  on  each  ballot 
was  counted  for  him. 

On  another  questioned  ballot  the  intersection  of  the  lines  of 
the  cross  was  clearly  in  the  square  provided  therefor,  and  opposite 
the  name  of  Moore,  and  was  counted  for  him. 

On  the  eleventh  questioned  ballot  the  lines  ran  in  opposite 
directions  and  intersected  opposite  the  name  of  Moore  and  in 
the  square  provided  therefor.  The  cross  is  not  complete,  as  one 
line  reached  but  did  not  pass  the  point  of  intersection.  The 
lines  appear  to  have  been  intended  for  a  cross,  but  to  have  been 
hastily  made  and  therefore  somewhat  imperfectly,  but  never- 
theless clearly  expressing  an  intent  to  vote  for  the  petitioner,  and 
we  have  accordingly  counted  it  for  him. 

The  twelfth  questioned  ballot  was  marked  with  a  perfect 
cross  throughout,  except  for  Mr.  Booth,  in  the  square  opposite 
whose  name  appeared  a  line  like  the  second  stroke  of  a  cross, 
around  and  upon  a  part  of  which  appeared  a  circle.  Certainly 
this  unusual  mark  had  some  peculiar  significance;  the  circle 
may  have  been  intended  for  a  mutilation  of  a  part  of  the  cross 
which  had  been  made.  Where  the  ballot  was  marked  perfectly 
throughout  the  committee  cannot  say  that  the  intent  of  the 
voter,  as  expressed  by  this  mark,  is  plain,  and  we  therefore  can- 


MOORE  V.  BOOTH.      HOUSE,    1910. 


39 


not  count  the  mark  for  Booth.     The  perfect  cross  opposite  the 
name  of  Moore  was  counted  for  him  without  objection. 

Of  the  12  questioned  ballots,  the  committee  have  counted  two 
votes  for  Booth  and  ten  for  Moore,  which  makes  a  total  vote  of 
the  district  for  Booth  and  Moore,  as  determined  by  us,  as 
follows:  — 


Booth. 

Moore. 

Fall  River,  Wards  1  and  2  (agreed) 
Fall  River,  Wards  1  and  2  (disputed) 

1,522 

2 

1,521 
10 

Fall  River  total 
Westport            ..... 

1,524 
61 

1,531 

57 

Total  in  district  .... 
,                                           .... 

1,585 

1,588 

A  recount  of  the  votes  cast  in  Westport  was  denied  by  the 
committee  on  the  ground  that  the  petitioner  had  not  sought  to 
take  advantage  of  his  statutory  right  to  have  the  votes  re- 
counted by  the  proper  officers  of  the  town,  in  accordance  with 
the  provisions  of  the  Acts  of  1907,  chapter  560,  section  300.  It 
seems  clear  that  the  committee  on  Elections  ought  not  to  recount 
the  vote  of  a  town  where  the  petitioner  has  not  availed  himself 
of  his  statutory  rights,  unless  he  was  prevented  from  doing  so 
by  the  fraud  of  his  opponent  or  by  some  cause  beyond  his  con- 
trol. Kimball  v.  Tilton,  Loring  &  Russell,  Mass.  Election  Cases 
(Ed.  1885-1902),  p.  315. 

From  the  foregoing  tabulation  of  the  votes  cast,  it  appears 
that  the  petitioner,  Fred  Moore,  received  a  plurality  of  three 
votes  over  the  seated  member,  William  Booth,  and  the  commit- 
tee therefore  recommend  the  adoption  of  the  following  reso- 
lution: — 

Resolved,  That  Fred  Moore  of  Fall  River  was  duly  elected  one  of  the  repre- 
sentatives to  the  General  Court  from  the  Ninth  Bristol  Representative  Dis- 
trict, at  the  election  held  Nov.  2,  1909,  and  that  he  is  entitled  to  and  is  hereby 
given  the  seat  now  occupied  by  William  Booth. 


[Resolve  seating  Moore  reported  Jan.  18,  adopted  Jan.  29,  1910. 
House  Journal,  p.  108.] 


40  MASSACHUSETTS   ELECTION  CASES  - —  1910. 


House  —  1910. 

Committee  on  Elections.  —  Messrs.  Clarence  A.  Warren  of  Chelsea,  chair- 
man; Amos  T.  Saunders  of  Clinton,  Charles  C.  Mellen  of  Braintree, 
David  T.  Montague  of  Boston,  clerk,  Timothy  F.  Callahan  of  Boston, 
David  Mancovitz  of  Boston  and  David  B.  Shaw  of  Boston. 

Charles  E.  Dennett  v.  Lynde  Sullivan. 

House  Document,  No.  434.     Jan.  21,  1910.     Report  by  all  the  committee. 

Marking  of  Official  Ballot.  —  Ballots  marked  with  what  may  be  termed  double 
crosses  in  the  square  opposite  the  name  of  a  candidate  will  be  counted. 

Same.  —  Ballot  marked  with  a  diagonal  mark  in  the  square  opposite  the  name 
of  a  candidate,  where  the  rest  of  the  ballot  is  properly  marked  with  crosses,  will 
not  be  counted  as  a  vote. 

Same.  —  Ballots  marked  with  diagonal  marks  in  the  square  opposite  the  name 
of  the  candidate  will  be  counted  where  the  rest  of  the  ballot  is  similarly  marked. 

Same.  —  Check  marks  will  be  counted  as  votes  where  the  rest  of  the  ballot  is 
similarly  marked. 

Same.  —  Ballot  marked  with  a  cross  in  the  space  between  the  name  of  the 
candidate  and  the  name  of  the  political  designation  will  be  counted. 

Recount  by  the  House  of  Representatives.  —  Where  a  candidate  was  declared 
elected  by  one  vote  at  a  recount,  the  closeness  of  the  vote;  evidence  that  the 
recount  was  conducted  in  an  irregular  manner;  that  the  tally  sheets  were  loosely 
handled;  that  the  result  of  the  tabulation  was  prematurely  announced;  that 
outsiders  were  permitted  to  verify  the  tabulation  and  had  access  to  the  tally  sheets 
thereby  affording  an  opportunity  for  fraud  and  mistake,  — ■  taken  collectively  will 
warrant  the  House  of  Representatives  in  recounting  the  ballots. 

The  committee  on  Elections,  to  whom  was  referred  the  petition 
of  Charles  E.  Dennett  for  a  recount  of  the  votes  cast  for  himself 
and  for  Mr.  Lynde  Sullivan  for  representative  in  the  Twenty- 
third  Middlesex  District,  having  heard  the  parties,  present  the 
following  report:  — 

The  said  district  comprises  twelve  precincts  in  the  city  of 
Maiden,  entitled  to  three  representatives.  No  recount  is  asked 
for  as  to  two  of  the  three.  The  contest  is  between  Dennett  and 
Sullivan.  On  election  day,  Nov.  2,  1909,  as  declared  by  the 
proper  officers,  Charles  E.  Dennett  had  2,322  votes  and  Lynde 
Sullivan  had  2,318,  Mr.  Dennett  winning  by  4  votes,  and  he  was 
duly  declared  elected  as  a  representative  from  said  district. 
A  recount  was  asked  for  and  had  by  the  board  of  registrars  for 
said  district  in  said  city  of  Maiden,  and  as  a  result  thereof  the 
registrars  reported  that  Mr.  Sullivan  had  2,323  votes  and  Mr. 
Dennett  and  2,322   votes,  and  Mr.   Sullivan  was  declared  duly 


DENNETT  V.  SULLIVAN.      HOUSE,   1910.  41 

elected  as  representative  for  said  district  by  1  vote,  and  a  cer- 
tificate of  election  was  issued  to  him  in  due  form. 

The  petitioner  claimed  in  his  petition  and  specifications  that 
he  was  entitled  to  a  recount  for  the  following  reasons:  — 

1.  Because  he  was  credited  with  less  and  Mr.  Sullivan  with 
more  votes  than  they  were  respectively  entitled  to. 

2.  That  the  recount  of  the  votes  by  the  board  of  registrars  of 
Maiden  was  improperly  conducted,  and  said  board's  report  was 
incorrect. 

3.  That  he  had  reason  to  believe  that  a  recount  would  show 
that  he,  Charles  E.  Dennett,  received  more  votes  than  Mr. 
Sullivan,  and  was  therefore  entitled  to  be  declared  and  seated 
as  the  representative  from  said  district  for  the  year  1910. 

At  the  hearing  there  was  evidence  tending  to  show  that  on 
election  day  Mr.  Dennett  was  elected  by  4  votes;  that  upon  a 
recount  by  the  registrars  in  Maiden  Mr.  Dennett  lost  and  Mr. 
Sullivan  was  declared  elected  by  1  vote;  that  at  the  recount  in 
Maiden  the  registrars  made  public  declaration  of  the  count  of 
each  block  of  votes  as  counted,  a  block  consisting  usually  of  50 
votes,  but  sometimes  of  a  less  number;  that  the  contestants 
were  present  at  the  recount,  and  kept  account  of  the  votes  as 
declared  as  the  recount  proceeded;  that  when  the  physical 
counting  of  all  the  ballots  ended,  about  5.30  o'clock  in  the 
afternoon,  it  was  generally  talked  and  discussed  in  the  room 
where  the  recount  took  place  that  it  was  a  tie  vote,  but  no 
public  declaration  of  the  total  vote  for  each  candidate  was  made 
by  the  registrars;  that  tally  sheets  were  kept  of  the  results  of 
the  count  of  each  block  of  votes,  there  being  111  of  such  sheets, 
and  from  these  tally  sheets  the  tabulation  was  to  be  made  to 
determine  the  total  vote  for  each  candidate,  and  notice  was  given 
that  the  tabulation  was  to  be  made  by  the  registrars  at  11 
o'clock  the  next  day;  that  in  fact  the  tabulation  was  made  the 
same  night  of  the  recount  by  the  chairman  and  clerk  of  the 
registrars,  in  the  absence  of  the  other  members  of  the  board  and 
without  notice  to  the  contestants,  and  the  count  then  made 
from  the  tally  sheets  was  verified  by  the  janitor;  that  the 
ballots  after  being  counted  were  sealed  up  about  5.30  p.m.  on 
the  day  of  the  recount,  and  remained  so  up  to  the  time  of  this 
hearing;  that  the  tally  sheets  were  placed  in  an  envelope  un- 
sealed, put  into  the  safe  and  the  latter  locked;  that  these  tally 
sheets  were  thereafter  removed  from  the  safe  about  7  o'clock  the 
same  evening,  and  the  tabulation  made  as  before  set  forth; 
that  one  other  person  had  access   to  the   safe   besides   the   citv 


42  MASSACHUSETTS  ELECTION  CASES  —  1910. 

clerk;  that  it  was  known  about  the  city  the  evening  of  the  day 
of  the  recount  that  Mr.  Sullivan  had  received  1  more  vote  than 
Mr.  Dennett;  that  the  formal  tabulation  and  record  was  made 
the  next  day,  but  no  public  declaration  of  the  result  of  the  re- 
count was  then  made  other  than  what  the  tabulation  itself  then 
showed. 

No  evidence  was  introduced  of  any  actual  fraud  or  intentional 
mistake  on  the  part  of  the  chairman  of  the  board  of  registrars  or 
the  city  clerk  in  what  they  did. 

The  foregoing  covers  substantially  the  evidence  considered  by 
the  committee. 

The  closeness  of  the  vote  at  the  recount;  the  irregular  manner 
of  conducting  the  recount,  as  above  set  forth;  the  premature  or 
unusual  giving  out  or  permitting  to  be  given  out  of  the  result  of 
the  tabulation;  the  loose  way  in  which  the  tally  sheets  were 
handled;  the  permitting  of  an  outsider  to  verify  the  tabulation; 
the  access  of  still  another  person  to  the  tally  sheets;  the  oppor- 
tunity afforded  whereby  the  change  of  one  mark  on  a  tally  sheet 
might  change  the  result  of  the  election;  and  the  making  of  the 
tabulation  in  the  absence  of  the  other  members  of  the  board  of 
registrars,  and  without  notice  to  the  petitioner,  —  taken  together, 
while  bringing  the  case  close  to  the  line  of  what  will  or  will  not 
justify  a  recount,  yet  on  the  whole  satisfied  the  committee  that 
there  were  substantial  and  good  reasons  for  believing  that  a  mistake 
had  or  might  have  been  made  in  ascertaining  the  result  of  the 
vote  for  representative  sufficiently  large  to  change  the  result  of 
the  election. 

In  addition,  it  appeared  that  the  only  possible  way  to  verify 
the  figures  on  the  tally  sheets  from  which  the  tabulation  was 
made  was  to  recount  the  ballots. 

Your  committee,  therefore,  for  the  foregoing  reasons,  decided 
upon  a  recount  and  recounted  the  ballots. 

The  result  of  the  recount  by  your  committee  was  as  follows: 
of  the  undisputed  ballots,  Mr.  Dennett  had  2,312  votes  and  Mr. 
Sullivan  2,312. 

There  were  in  addition  15  disputed  ballots,  and  these  for  con- 
venience are  numbered  from  1  to  15,  inclusive.  In  dealing  with 
the  disputed  ballots  your  committee  followed  the  rule  as  laid 
down  in  numerous  cases,  namely:  — 

If  the  intent  of  the  voter  can  be  fairly  determined,  effect  shall 
be  given  to  that  intent,  and  the  vote  counted  in  accordance  there- 
with.   See  Flanders  v.  Roberts,  182  Mass.  525. 

Where  it  appears  hereinafter  that  the  committee  counted  bal- 


DENNETT  V.  SULLIVAN.      HOUSE,    1910.  43 

lots  for  or  against  Dennett  or  Sullivan,  it  means  that  the  com- 
mittee decided  that  such  was  the  intent  of  the  voter. 

It  should  be  kept  in  mind  in  dealing  with  the  disputed  ballots 
that  the  voter  had  a  right  to  vote  for  three  candidates  on  the 
ballot  for  representative,  so  that  it  will  appear  in  some  cases  that 
Dennett  and  Sullivan  each  were  entitled  to  a  vote  on  the  same 
ballot. 

The  disputed  ballots  are  further  divided  into  classes  a,  b,  c,  d, 
e  and/. 

(a)  Nos.  1,  2,  3,  4  and  15  were  ballots  where  the  voter  made 
what  may  be  called  double  crosses  in  the  squares  at  the  right 
of  the  names  of  candidates.  Nos.  1,  2,  3  and  15  were  counted 
for  Sullivan.    Nos.  4  and  15  were  counted  for   Dennett. 

(b)  No.  5  was  a  ballot  where  the  voter  made  a  diagonal 
mark  (/)  in  the  square  at  the  right  of  Dennett's  name  and  a 
cross  (X)  in  the  square  at  the  right  of  Sullivan's  name.  The 
vote  for  Dennett  was  disallowed  and  the  one  for  Sullivan 
counted.  This  decision  seems  to  be  fully  warranted  by  law. 
Brewster  v.  Sherman,  195  Mass.  222. 

(c)  No.  6  was  a  ballot  on  which  appeared  a  cross  in  the 
square  opposite  the  name  of  Dennett,  and  a  very  irregular  lot  of 
marks  in  the  square  at  the  right  of  the  name  of  Sullivan.  There 
were  two  other  crosses  in  proper  places  on  other  parts  of  the 
ballot.  Your  committee  could  not  determine  what  the  intention 
of  the  voter  was  in  respect  to  Sullivan,  and  therefore  disallowed 
it  as  a  vote  for  him.     They  counted  this  ballot  for  Dennett. 

(d)  Nos.  7,  12  and  14  are  what  might  be  termed  erasures,  and 
were  so  decided  by  the  committee.  On  No.  7  proper  crosses 
were  against  the  names  of  both  Dennett  and  Sullivan,  and  were 
counted  one  for  each.  In  explanation,  it  may  be  said  that  the 
erasure  was  against  the  name  of  another  candidate  for  repre- 
sentative, and  if  the  mark  had  not  been  an  erasure,  the  vote  of 
all  the  representatives  would  have  been  thrown  out,  because 
four  crosses  would  appear  where  but  three  were  permissible. 
No.  12  is  a  ballot  where  a  cross  was  in  the  square  against  the 
name  of  Sullivan,  and  what  appeared  to  be  an  erasure  of  a 
cross  against  the  name  of  Dennett.  The  ballot  was  counted 
for  Sullivan.  The  ballot  was  not  counted  for  Dennett.  On  No. 
14  there  was  a  faint  cross  against  the  name  of  Dennett,  but  the 
appearance  of  it  indicated  an  erasure,  and  the  committee  de- 
cided that  it  was  an  erasure.  The  committee  were  aided  in  so 
deciding  by  reason   of  similar   marks   or   erasures   in   two   other 


44  MASSACHUSETTS  ELECTION  CASES  —  1910. 

places  on  the  ballot,  and  by  the  seven  other  good  plain  crosses 
against  the  names  of  candidates  other  than  representatives. 

(e)  Nos.  8,  9  and  11  were  ballots  where  there  were  straight 
marks,  and  No.  13  had  check  marks,  in  the  proper  squares. 
There  were  no  crosses  on  any  of  the  four  ballots.  No.  8  was 
counted  for  Sullivan;  No.  9  was  counted  for  Sullivan;  No.  11 
was  counted  for  Dennett;  No.  13  was  counted  for  Dennett  and 
Sullivan. 

(f)  No.  10  was  a  ballot  with  a  cross  in  the  space  between  the 
name  of  Dennett  and  the  political  designation.  The  committee 
was  clear  that  the  voter  intended  to  vote  for  Dennett,  and  it 
was  counted  for  him. 

The  count,  therefore,  of  the  15  disputed  ballots  resulted  as 
follows:  Sullivan  had  10;  Dennett  had  8.  These  votes,  added 
to  the  undisputed  figures,  make  the  total  vote  of  Sullivan 
2,312  +  10  =  2,322,  and  Dennett  2,312  +  8=2,320,  and  the 
committee  so  find,  and  that  Mr.  Lynde  Sullivan  was  duly 
elected  by  a  plurality  of  2  votes,  and  is  entitled  to  his  seat  as 
representative  for  the  Twenty-third  Middlesex  District  for  the 
year  1910. 

The  committee  recommend  that  the  petitioner  have  leave  to 
withdraw. 

[The  report  of  the  committee  was  accepted.  —  House  Journal, 
p.  164.] 


House  —  1911. 


Committee  on  Elections.  —  Messrs.  Roger  Wolcott  of  Milton,  chairman; 
Charles  N.  Edgell  of  Gardner,  John  H.  Coggswell  of  Lynn,  Dennis 
A.  O'Neil  of  Boston,  William  A.  O'Hearn  of  North  Adams  and  John 
C.  Mahoney  of  Worcester. 

Ignatius  J.  Carlton  v.  Louis  R.  Kiernan. 

[Jan.  26,  1911.    Report  by  Roger  Wolcott,  chairman,  leave  to  withdraw  on 
request  of  petitioner.    Report  not  printed.  —  House  Journal,  p.  274.] 


PRATT  V.   SARGENT.      HOUSE,    1912.  45 


House  —  1912. 

Committee  on  Elections.  —  Messrs.  Clarence  W.  Hobbs,  Jr.,  of  Worcester, 
chairman;  Ernest  A.  Witt  of  Springfield,  Harry  M.  Eames  of  Andover, 
Frank  Mtjlveny  of  Fall  River,  clerk,  Edward  T.  Morse  of  East  Bridge- 
water,  William  J.  Murray  of  Boston,  and  James  F.  Griffin  of  Boston. 

Almon  L.  Pratt  v.  Edgar  E.  Sargent. 

House  Document,  No.  1607.    Jan.  22,  1912.    Report  by  the  chairman  for 

the  committee. 

Notice  of  Meeting,  Irregularities  in,  will  not  avoid  Election.  —  Where  the  notice 
of  the  meeting  for  the  election  of  State  officers  was  served  in  a  town  only  four 
days  before  the  election,  instead  of  the  seven  days  as  required  by  statute,  the 
validity  of  the  election  of  a  representative  is  not  necessarily  affected.  If  the  voters 
are  actually  notified  the  purpose  of  the  law  is  accomplished. 

The  committee  on  Elections,  to  whom  was  referred  the  peti- 
tion of  Almon  L.  Pratt  that  he  may  be  declared  the  duly  elected 
member  of  the  House  of  Representatives  from  the  Fourth 
Hampshire  Representative  District,  have  duly  considered  the 
same  and  report  as  follows:  — 

The  petitioner  seeks  to  have  the  vote  cast  in  the  town  of 
Ware,  which  is  within  said  district,  declared  invalid,  because 
the  selectmen  failed  to  issue  and  serve  the  warrant  calling  the 
meeting  for  the  election  at  least  seven  days  before  the  day  pre- 
scribed by  law  for  the  holding  thereof,  as  required  by  Acts  of 
1907,  chapter  560,  section  246.  The  warrant  was  in  fact  issued 
and  served  only  four  days  prior  to  the  election. 

In  case  of  a  town  meeting  such  an  error  would  unquestionably 
render  the  meeting  invalid,  but  the  meeting  for  the  election  of 
State  officers  stands  on  a  very  different  footing.  A  town  meeting 
is  held  under  authority  of  the  warrant  calling  it,  and  unless 
the  warrant  for  the  meeting  is  properly  issued  and  served,  there 
is  no  legal  authority  for  holding  the  meeting.  The  meeting  for 
the  election  of  State  officers  is  not  held  under  authority  of  the 
warrant,  but  by  virtue  of  a  general  law  prescribing  the  time, 
place  and  purposes  thereof.  The  warrant  serves  merely  to  notify 
the  voters.  If  the  voters  are  actually  notified,  the  purpose  of 
the  law  is  fulfilled.  Therefore  a  failure  to  issue  and  serve  the 
warrant  within  the  time  required  by  law  does  not  necessarily 
invalidate  the  election.     Commonwealth  v.  Smith,  132  Mass.  289; 


46  MASSACHUSETTS  ELECTION  CASES  —  1912. 

Hillman  v.  Flanders,  before  the  committee  on  Elections  of  the 
House  of  Representatives  in  the  year  1880,  cited  in  Mass. 
Contested  Election  Cases,  p.  338. 

In  the  present  case  it  was  not  claimed  that  the  failure  to  issue 
and  serve  the  warrant  as  required  by  law  prevented  a  full, 
free  and  fair  vote.  According  to  testimony  at  the  hearing,  the 
vote  cast  was  not  below  the  normal,  85  per  cent  of  the  registered 
vote  having  been  polled.  No  claim  of  fraud  or  collusion  was 
made,  or  that  the  failure  to  issue  the  warrant  properly  operated 
to  the  peculiar  disadvantage  of  the  contestant.  The  committee 
can  therefore  see  no  good  reason  why  the  voters  of  the  town 
of  Ware  should  be  deprived  of  their  votes  through  circum- 
stances entirely  beyond  their  control. 

The  committee  report  that  the  petitioner  have  leave  to  with- 
draw. 

[The  report  of  the  committee  was  accepted.  —  House  Journal, 
p.  298.] 


CLARKSON  V.   VINSON.      SENATE,    1912.  47 


Senate  —  1912. 

Special  Committee.  —  Hon.   Harry  N.   Stearns,   chairman;    Hon.   Calvin 
Coolidge  and  Hon.  James  P.  Timilty. 

Robert  P.  Clarkson  v.  Thomas  M.  Vinson. 

Senate  Document,  No.  434.    March  27,  1912.    Report  by  all  the  committee. 

Domicile,  Proof  of.  —  Personal  absence  for  a  while  does  not  necessarily  change 
one's  domicile,  and  personal  presence  in  a  place  for  a  somewhat  prolonged  period 
in  absence  of  intention  does  not  necessarily  establish  domicile  there. 

The  Special  Committee,  to  whom  was  referred  the  petition  of 
Robert  P.  Clarkson  that  he  be  declared  elected  senator  from 
the  Eighth  Suffolk  District,  having  met  the  petitioner  and  the 
sitting  senator,  Thomas  M.  Vinson,  and  heard  their  evidence, 
submit  the  following  report:  — 

The  respondent,  Thomas  M.  Vinson,  testified  that  he  had 
lived  in  the  Eighth  Suffolk  District  all  his  life;  that  his  father 
and  grandfather  before  him  lived  in  that  part  of  the  city  of 
Boston,  formerly  Dorchester;  that  he  lived  with  his  mother 
at  31  Bradshaw  Street  in  the  district  up  to  August,  1910,  when 
he  was  married  and  moved  with  his  wife  to  7  Bicknell  Street, 
also  in  the  district;  that  he  lived  there  about  one  year;  that 
he  did  not  move  to  7  Bicknell  Street  with  the  intention  of  making 
it  his  permanent  home,  and  that  when  he  moved  there  he  did 
not  move  all  his  furniture,  but  left  part  of  it  at  Bradshaw 
Street;  that  when  he  left  the  house  on  Bicknell  Street  he  sent 
part  of  his  furniture  back  to  Bradshaw  Street;  that  in  the 
spring  of  1911  he  bought  a  farm  in  Winchester,  mainly  for  in- 
vestment, intending  to  use  this  farm  during  the  summer  and  then 
to  return  to  Bradshaw  Street;  that  the  farmhouse  was  only 
adapted  for  summer  use,  not  having  running  water  or  heating 
apparatus,  except  stoves  in  the  rooms,  or  any  modern  lighting 
system;  that  his  stay  in  Winchester  was  prolonged  by  reason 
of  the  fact  that  his  wife  gave  birth  to  a  child  Oct.  12,  1911, 
and  was  ill  for  three  months  thereafter;  that  just  as  soon  as  his 
wife  was  able,  in  January,  1912,  she  was  moved  to  Shawmut 
Avenue,  Boston,  to  the  house  of  her  father,  who  is  a  doctor; 
that  during  the  period  covered  by  the  petition  the  respondent 
was    sometimes    at    Winchester    and    sometimes    at    Bradshaw 


48  MASSACHUSETTS  ELECTION  CASES  —  1912. 

Street;  that  he  had  rooms,  furniture  and  clothing  at  Bradshaw 
Street;  that  during  the  election  period  he  was  living  for  weeks 
at  Bradshaw  Street;  that  he  himself  spent  very  little  time  in 
Winchester  after  October,  1911;  that  he  now  goes  to  Winchester 
as  often  as  he  thinks  necessary  to  oversee  certain  work  which  is 
being  done  there;  that  his  wife  has  not  physically  resided  at 
Bicknell  Street. 

The  respondent's  wife  testified  that  she  and  her  husband 
were  married  June  30,  1910;  that  on  August  10  they  went  to 
live  at  7  Bicknell  Street  and  lived  there  until  the  end  of  May, 
1911;  that  she  then  went  to  live  at  her  summer  home  in  Win- 
chester, where  she  remained  until  January,  1912;  that  she  has 
not  been  living  in  Winchester  since  then;  that  her  baby  was 
born  Oct.  12,  1911,  and  that  she  was  ill  three  months  thereafter; 
that  she  insisted  on  having  her  baby  born  in  Winchester,  and 
that  the  respondent  is  now  living  in  her  father's  house  on 
Shawmut  Avenue. 

E.  W.  Longley,  auditor  for  the  New  England  Telephone  and 
Telegraph  Company,  testified  that  when  the  respondent  moved 
to  Bicknell  Street  he  had  a  telephone  installed  there  in  his  own 
name,  and  that  after  he  had  gone  to  Winchester,  May  31,  1911, 
it  was  removed;  that  a  contract  was  made  with  the  telephone 
company  to  install  a  telephone  in  the  farmhouse  in  Winchester 
July  17,  1911,  and  bills  were  rendered  for  service  from  October, 
1911,  to  January,  1912;  that  in  the  telephone  directory  the 
Winchester  address  was  "  Thomas  M.  Vinson,  Res.  Winchester 
326-W."  Mr.  Longley  testified  in  cross  examination  that  in 
1903  the  respondent  had  contracted  for  a  telephone  at  Bradshaw 
Street;  that  this  contract  was  still  in  force  and  paid  for;  and 
that  on  Oct.  3,  1910,  the  list  name  of  this  telephone  had  been 
changed  at  the  request  of  the  respondent  to  Mrs.  S.  W.  Vinson. 

E.  O.  Childs,  register  of  deeds,  Middlesex  County,  testified 
that  the  records  show  a  transfer  of  fifty-nine  and  one-quarter 
acres  of  land  in  Winchester  from  Henry  J.  Halladay  of  Newton, 
to  Thomas  M.  Vinson,  which  was  dated  March  22,  1911,  and 
soon  after  recorded. 

Fred  V.  Worcester  of  Winchester,  assessor,  testified  that 
Thomas  M.  Vinson  was  assessed  April  1,  1911,  for  fifty-nine  and 
one-quarter  acres  of  land  valued  at  $7,975,  and  that  Mr.  Vinson, 
the  respondent,  was  not  assessed  as  a  resident  of  Winchester  in 
April,  1911. 

Charles  H.  Herrick  of  Winchester  testified  that  he  never  saw 
the  respondent  prior  to  the  date  of  his  testimony,  and  that  he 


CLARKSON  V.  VINSON.      SENATE,   1912.  49 

himself  lives  about  half  a  mile  from  the  farm  which  the  respond- 
ent bought. 

Herbert  L.  Cox  testified  that  he  had  never  seen  the  respondent. 
W.  L.  Thompson  testified  that  he  had  never  seen  the  respondent, 
although  he  had  talked  with  him  on  the  telephone  in  regard  to 
the  installation  of  electric  lights  in  the  district  in  Winchester  in 
which  the  Vinson  farm  was  located. 

George  L.  Locke  testified  that  he  had  seen  the  respondent  on 
the  street  in  Winchester  during  December,  January  and  February 
last;  that  he  had  first  seen  him  in  Winchester  during  the 
summer  of  1911. 

Thomas  M.  Hutchinson  testified  that  he  had  seen  Vinson  in 
town,  passing  by  on  the  road,  and  that  he  lived  about  half  a 
mile  from  the  place  that  Mr.  Vinson  had  bought. 

Albert  E.  McLellen,  letter  carrier,  testified  that  the  Vinson 
farm  was  on  his  route;  that  he  had  delivered  letters  at  the 
house  for  four  months  prior  to  Feb.  20,  1912;  that  he  recollected 
only  that  the  name  Vinson  was  on  the  letters;  and  that  he  had 
only  seen  Vinson  himself  once,  on  Christmas,  1911. 

C.  W.  Warner  testified  that  on  May  27,  1911,  he  took  two 
loads  of  furniture  to  Winchester  and  delivered  them  as  ordered 
by  the  respondent;  that  he  has  also  taken  some  furniture  from 
one  house  in  Dorchester  to  another  house  in  Dorchester,  the 
location  of  the  houses  not  being  more  definitely  placed  in  his 
mind. 

W.  Walter  Marsh  testified  that  he  had  seen  the  respondent 
in  Winchester  once  between  June  and  July,  1911. 

John  F.  Morse  testified  that  he  lived  at  the  same  premises, 
7  Bicknell  Street,  at  which  the  respondent  lived  with  his  wife, 
and  that  when  the  respondent  was  leaving  he  told  him  he  was 
going  to  buy  a  place  in  Winchester  for  investment. 

W.  E.  Pring  testified  that  he  canvassed  for  the  Winchester 
Directory,  and  took  names  from  a  house  on  High  Street  in 
Winchester;  that  in  answer  to  a  question  by  him  as  to  who 
lived  there,  he  was  told  by  a  woman  that  the  respondent  lived 
there. 

A.  D.  Randlett,  messenger  boy,  sixteen  years  of  age,  said  that 
he  went  to  High  Street,  Winchester,  on  Saturday,  Feb.  17,  1912, 
to  deliver  a  letter,  and  that  he  was  told  by  the  woman  who 
came  to  the  door  that  Mrs.  Vinson  did  not  live  there  now. 

The  deposition  of  Mrs.  Samuel  W.  Vinson,  31  Bradshaw 
Street,  Boston,  was  taken  Feb.  24,  1912.  She  testified  that  the 
respondent,  her  son,  was  with  her  a  great  deal  of  the  time  in 


50  MASSACHUSETTS  ELECTION  CASES  —  1912. 

October,  November  and  December,  1911,  and  that  he  had 
furniture,  rugs,  bric-a-brac  and  many  books  and  pictures  in  the 
house  at  Bradshaw  Street. 

Upon  the  evidence,  the  committee  find  the  following  facts :  — 
Mr.  Thomas  M.  Vinson  has  lived  in  the  district  in  question 
for  years.  In  October,  1910,  he  moved  with  his  wife  from  his 
mother's  house  on  Bradshaw  Street  to  7  Bicknell  Street,  both 
houses  being  in  the  said  district.  On  March  22,  1911,  he  bought 
a  farm  in  Winchester.  On  May  27,  1911,  he  moved  a  part  of 
his  furniture  from  Bicknell  Street  to  Winchester,  and  part  of  it 
to  his  mother's  house  on  Bradshaw  Street.  The  house  at 
Winchester  is  without  running  water,  without  heat,  except 
stoves,  and  without  modern  lighting.  Mr  Vinson  bought  the 
farm  in  Winchester  for  an  investment.  He  had  a  telephone 
installed  in  the  Winchester  house,  and  had  one  in  the  house 
on  Bicknell  Street,  and  still  has  one  at  31  Bradshaw  Street, 
having  contracted  for  it  in  1903.  In  October,  1910,  the  telephone 
at  Bradshaw  Street  was  listed  at  Mr.  Vinson's  request  in  the 
name  of  his  mother,  Mrs.  S.  W.  Vinson.  On  Oct.  12,  1911, 
Mr.  Vinson's  wife  gave  birth  to  a  child  in  the  Winchester  house, 
and  she  was  ill  there  for  three  months  thereafter.  Election  day 
was  Nov.  7,  1911,  and  Mr.  Vinson  was  living  at  Bradshaw 
Street  within  the  district  for  several  weeks  in  October,  November 
and  December,  1911.  The  birth  of  the  child  in  Winchester  and 
Mrs.  Vinson's  sickness  prolonged  the  stay  of  Mr.  and  Mrs. 
Vinson  in  Winchester.  Mr.  Vinson  never  intended  to  make 
Winchester  his  permanent  residence,  but  he  and  his  wife  left 
the  Winchester  house  as  soon  after  October,  1911,  as  circum- 
stances would  permit,  and  Mrs.  Vinson  in  January,  1912,  went 
to  the  house  of  her  father,  who  is  a  doctor.  This  house  is  on 
Shawmut  Avenue,  Boston,  and  is  not  in  the  district. 

Upon  the  law  and  the  evidence,  the  case  seems  to  resolve 
itself  as  follows :  — 

1.  That  Mr.  Vinson  had  a  legal  domicile  in  the  Eighth  Suffolk 
District,  unless  the  evidence  shows  that  he  abandoned  it  and 
elected  to  have  his  domicile  in  Winchester. 

2.  That  it  was  never  his  intention  to  abandon  his  domicile  in 
said  district,  and  that  he  lived  in  Winchester  only  temporarily 
for  the  summer  and  fall. 

3.  That  the  evidence  does  not  modify  this  intention  not  to 
abandon  his  domicile  in  said  district  and  to  elect  Winchester  as 
his  domicile. 


CLAKKSON  V.  VINSON.      SENATE,    1912.  51 

(a)  The  evidence  in  regard  to  the  telephones  is  not  inconsistent 
with  such  intention  and  with  his  acts. 

(6)  The  physical  condition  of  the  Winchester  house  confirms 
in  part  this  intention. 

(c)  The  presence  of  furniture  at  Bradshaw  Street  belonging  to 
him  is  not  inconsistent  with  his  expressed  intention  or  with  his 
acts. 

(d)  The  length  of  his  stay  at  Winchester  is  explained. 

(e)  The  testimony  of  neighbors  in  Winchester  is  of  very  little 
value,  and  not  inconsistent  with  the  claim  that  this  property  in 
Winchester  was  a  summer  home. 

(/)  The  petitioner  did  not  introduce  any  evidence  as  to  where 
the  respondent  slept,  and  we  find  that  he  slept  both  in  the 
Bradshaw  Street  house  and  in  Winchester. 

While  we  make  no  finding  on  the  request  of  the  petitioner 
that  he  be  seated  in  place  of  the  respondent,  we  have  the 
gravest  doubt  of  his  right  to  the  seat,  even  if  we  had  found 
that  the  respondent  was  not  properly  seated.  We  feel  that,  in 
case  of  such  a  finding,  a  new  election  would  be  the  only  proper 
solution.  The  voters  would  be  deceived  if,  in  this  case,  the 
candidate  receiving  the  second  highest  number  of  votes  should 
be  seated. 

The  committee  therefore  find  that,  from  the  evidence  sub- 
mitted, the  petitioner  has  not  proved  his  case,  and  we  recommend 
and  report  that  the  petitioner  have  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  —  Senate  Journal, 
p.  1013.] 


52  MASSACHUSETTS  ELECTION  CASES  —  1913. 


House  —  1913. 

Committee  on  Elections.  —  Messrs.  Clarence  A.  Barnes  of  Mansfield,  chair- 
man; Joseph  Craig  of  Loweil,  William  Booth  of  Fall  River,  Almon  L. 
Pratt  of  Belcher  town,  Charles  N.  Atwood  of  Middleborough,  Daniel 
Fitzpatrick  of  Lawrence  and  John  J.  Gallagher  of  Milton,  clerk. 

Charles  H.  McGlue  v.  William  A.  Fisher. 

House  Document,  No.  1947.    Feb.  18,  1913.    Report  by  Mr.  Gallagher,  clerk 

[This  was  a  petition  for  the  seat  held  by  the  respondent  for  the  Fourteenth 
Essex  District.  The  votes  for  representatives,  for  reasons  not  reported,  were 
counted  by  the  committee,  and  the  sitting  member  found  to  have  a  plurality. 
The  committee  thereupon  reported  leave  to  withdraw,  and  the  report  of  the 
committee  was  accepted.  —  House  Journal,  1913,  p.  573.] 


NAPHEN  V.   BRENNAN.      HOUSE,    1914.  53 


House  —  1914. 

Committee  on  Elections.  —  Messrs.  William  Booth  of  Fall  River,  chairman; 
William  W.  Kennard  of  Somerville,  Charles  N.  Atwood  of  Middle- 
borough,  Cleaveland  A.  Chandler  of  East  Bridgewater,  clerk,  Joseph 
L.  Barry  of  Agawam,  James  F.  Griffin  of  Boston  and  Michael  H. 
Cotter  of  Lynn. 

William  J.  Naphen  v.  Thomas  H.  Brennan. 

House  Document,  No.  2050.    Jan.  28,  1914.    Report  by  William  Booth,  chair- 
man; Messrs.  Barry,  Griffin  and  Cotter  dissenting. 

Recount  of  Votes.  —  When  the  registrars  of  voters,  after  a  recount  of  votes  cast 
for  representative,  refuse  or  neglect  to  make  the  necessary  returns  and  statements 
of  the  result  of  their  recount,  the  House  will  order  the  ballots  counted  in  order  to 
ascertain  who  is  elected. 


To  the  Honorable  House  of  Representatives. 

Respectfully  represents  William  J.  Naphen  of  Natick,  in  the  county  of 
Middlesex  and  the  said  Commonwealth,  that  at  the  annual  State  election  held 
on  Tuesday  the  fourth  day  of  November,  A.D.  1913,  for  the  choice  of  State 
and  county  officers  and  members  of  the  General  Court  of  said  Commonwealth, 
your  petitioner  was  a  candidate  for  election  to  the  House  of  Representatives 
of  said  General  Court  for  the  Sixth  Middlesex  Representative  District,  com- 
prising said  town  of  Natick,  duly  nominated  by  the  Republican  party,  and 
that  his  name  was  duly  printed  on  the  official  ballot  used  in  said  election;  that 
one  Thomas  H.  Brennan  of  said  Natick  was  duly  nominated  by  the  Demo- 
cratic party  for  the  said  office  of  representative  for  said  district,  and  his  name 
was  duly  printed  on  said  official  ballot;  that  William  O.  Cutler,  Arthur  W. 
Robinson,  Michael  H.  Sweeney  and  Jeremiah  Cohan  were  then  and  are  now 
the  duly  constituted  board  of  registrars  of  voters  of  said  Natick. 

Upon  the  face  of  the  returns  made  by  the  election  officers  of  the  various 
precincts  of  said  town,  it  appeared  that  said  Thomas  H.  Brennan  received 
1,017  votes;  that  said  William  J.  Naphen  received  1,015  votes;  and  that 
there  were  67  blanks  for  said  office  of  representative  to  the  General  Court. 

On  the  sixth  day  of  November,  A.D.  1913,  a  petition  signed  by  more  than 
ten  qualified  voters  of  said  Natick,  praying  for  a  recount  of  said  votes  for  said 
office  of  representative,  was  duly  filed  with  the  town  clerk  of  said  Natick. 

On  the  eighth  day  of  November,  A.D.  1913,  said  ballots  for  said  office  of 
representative  were  recounted  by  said  board  of  registrars  of  voters.  The 
recount  disclosed  errors  in  the  original  count  of  one  block  of  ballots.  A  ballot 
cast  for  William  J.  Naphen  had  been  originally  counted  for  Thomas  H.  Bren- 
nan. The  correction  of  this  error  resulted  in  William  J.  Naphen  gaining  one 
vote  and  Thomas  H.  Brennan  losing  one  vote.  Another  error  was  discovered 
in  the  original  total  tabulating  sheet.  Thomas  H.  Brennan  had  been  credited 
on  the  original  total  tabulating  sheet  with  one  more  vote  than  he  was  entitled 
to,  as  shown  by  a  comparison  with  both  the  original  and  recount  tally  sheets. 


54  MASSACHUSETTS  ELECTION  CASES  —  1914. 

The  correction  of  this  error  resulted  in  the  loss  of  one  vote  by  said  Thomas  H. 
Brennan.  The  finish  of  the  recount  showed  that  as  a  result  of  said  recount 
William  J.  Naphen  gained  one  vote  and  Thomas  H.  Brennan  lost  two  votes; 
that  at  the  completion  of  said  recount  said  Michael  H.  Sweeney,  chairman  of 
said  board  of  registrars  of  voters,  announced,  as  the  result  of  said  recount, 
that  said  Thomas  H.  Brennan  had  received  1,015  votes,  that  said  William  J. 
Naphen  had  received  1,016  votes,  and  that  there  were  68  blanks,  total  2,099, 
as  appeared  by  the  recount  total  tabulating  sheet,  and  also  appears  by  the 
record  of  the  proceedings  of  said  board  of  registrars  of  voters,  a  copy  of  which 
record  is  hereto  annexed,  marked  "A;"  that  thereupon  the  ballots  were  en- 
closed in  their  proper  envelopes,  duly  sealed  and  endorsed,  and,  together  with 
the  total  tabulating  sheet  of  said  recount,  were  returned  to  the  town  clerk 
of  said  Natick,  but  no  statement  of  their  determination  of  the  result  of  said 
recount  was  made,  signed  and  returned  therewith  by  said  board  of  registrars 
of  voters  as  required  by  law. 

On  the  tenth  day  of  November,  A.D.  1913,  said  board  of  registrars  of  voters 
again  met,  and  a  statement  prepared  by  the  clerk  of  said  board,  certifying 
that  the  result  of  said  recount  showed  that  William  J.  Naphen  had  received 
1,016  votes,  and  that  Thomas  H.  Brennan  had  received  1,015  votes  for  said 
office  of  representative  to  the  General  Court  for  the  Sixth  Middlesex  Repre- 
sentative District,  was  signed  by  William  O.  Cutler  and  Arthur  W.  Robinson, 
members  of  said  board,  but  said  Michael  H.  Sweeney  and  Jeremiah  Cohan, 
the  other  members  of  said  board,  neglected  and  refused  to  sign  said  statement 
and  still  neglect  and  refuse  to  sign  the  same;  that  as  a  result  thereof  the  board 
of  selectmen  of  said  Natick  have  not  issued  to  your  petitioner  his  certificate 
of  election  to  said  office  of  representative  to  the  General  Court  for  the  Sixth 
Middlesex  Representative  District. 

Wherefore,  Your  petitioner  prays  your  honorable  body  that  he  be  declared 
by  your  honorable  body  to  be  the  duly  elected  representative  for  the  Sixth 
Middlesex  Representative  District,  in  accordance  with  the  facts  as  set  forth 
in  said  petition,  and  as  they  further  appear  in  the  recount  total  tabulating 
sheet  and  in  said  record  of  the  board  of  registrars  of  voters  of  said  Natick. 

William  J.  Naphen. 

(Petition,  House  Document,  No.  314.) 

Your  committee  on  Elections,  to  whom  was  referred  the  peti- 
tion (House,  No.  314)  of  William  J.  Naphen  that  he  be  declared 
duly  elected  representative  from  the  Sixth  Middlesex  Repre- 
sentative District,  respectfully  report  as  follows:  — 

That  in  accordance  with  the  order  passed  by  the  House  on 
Jan.  13,  1914,  the  committee  gave  three  hearings  upon  the 
petition  and  examined  and  counted  the  ballots  cast  in  said 
election. 

At  said  hearings  and  counting  the  petitioner  was  present  in 
person  and  represented  by  counsel,  and  Thomas  H.  Brennan  of 
Natick  was  also  present  in  person  and  represented  by  counsel, 
said  Brennan  and  the  petitioner  having  been  the  only  candidates 


NAPHEN  V.  BRENNAN.      HOUSE,   1914.  55 

to  receive  any  votes  for  the  said  office  of  representative  in  said 
district. 

During  the  counting  several  of  said  ballots  were  protested  on 
the  ground  that  they  were  insufficiently  or  improperly  marked. 
As  to  all  but  three  of  the  ballots  your  committee  was  unanimous 
in  its  decision. 

At  the  request  of  a  minority  of  the  committee,  and  in  ac- 
cordance with  an  order  of  the  House,  photographic  reproductions 
of  these  three  ballots  have  been  prepared.  These  ballots  were 
found  in  original  envelopes,  marked  "  Block  Fourteen,"  "  Block 
Twenty-eight"  and  "Block  Thirty,"  and  the  photographic 
reproductions  have  been  marked  by  their  original  block  numbers 
for  purposes  of  identification  and  reference. 

The  ballots  found  in  blocks  14  and  30  were  counted  by  a 
majority  of  your  committee  as  votes  for  the  petitioner. 

The  ballot  found  in  block  28  was  counted  by  a  majority  of 
your  committee  as  a  blank. 

As  a  result  of  the  count  of  the  ballots,  a  majority  of  your 
committee  reports  that  the  total  number  of  ballots  cast  for 
representative  in  said  district  was  2,099;  that  the  petitioner, 
William  J.  Naphen,  had  1,016;  that  Thomas  H.  Brennan  had 
1,015;    and  that  68  ballots  were  blanks. 

A  majority  of  your  committee  therefore  reports  the  accom- 
panying resolve. 

[The  resolve  declared  that  the  petitioner  was  duly  elected  and 
entitled  to  the  seat,  and  was  adopted  by  the  House  Feb.  3, 
1914.  —  House  Journal,  p.  389.] 


56  MASSACHUSETTS  ELECTION  CASES  —  1915. 


House  —  1915. 

Committee  on  Elections.  —  Messrs.  Charles  E.  Stanwood  of  Needham,  chair- 
man; James  T.  Bagshaw  of  Fall  River,  clerk,  Frederick  Butler  of 
Lawrence,  Albert  Holway  of  Bourne,  John  Mitchell  of  Springfield, 
Michael  H.  Cotter  of  Lynn  and  Maurice  F.  Flynn  of  Maiden. 

George  A.  Whitney  v.  Eben  S.  Cobb. 

House  Document,  No.   1666.     Feb.  9,   1915.     Report  by  Frederick  Butler 
for  the  committee;    Messrs.  Mitchell,  Cotter  and  Flynn  dissenting. 

Recount  of  Votes.  —  Where  an  election  for  representative  was  declared  to  result 
in  a  tie  vote,  the  committee  considering  it  probable  that  a  mistake  was  made  in 
the  count,  recounted  the  votes  in  the  district. 

The  committee  on  Elections,  to  whom  was  referred  the 
petition  (House,  No.  365)  of  George  A.  Whitney  that  he  be 
declared  one  of  the  duly  elected  representatives  from  the  Tenth 
Worcester  Representative  District,  respectfully  report  as 
follows :  — 

That,  in  accordance  with  an  order  passed  by  the  House  of 
Representatives  on  the  twelfth  day  of  January  of  the  current 
year,  the  committee  gave  hearings  upon  the  petition  and  ex- 
amined all  the  ballots  cast  in  said  election.  At  said  hearings 
the  petitioner  was  present  in  person  and  was  represented  by 
counsel,  he  being  the  only  one  of  all  the  candidates  present  at 
the  hearings. 

During  the  examination  of  the  ballots  several  of  them  were 
protested  on  the  ground  that  they  were  insufficiently  or  improp- 
erly marked.  As  to  all  but  one  of  the  ballots  your  committee 
was  unanimous  in  its  decision.  Two  ballots  have  been  photo- 
graphed, viz.,  one  found  in  block  4  in  the  town  of  North- 
borough,  which  was  counted  by  a  majority  of  your  committee 
as  a  blank,  and  the  other  ballot,  found  in  block  1  in  the  town 
of  Berlin,  which  was  counted  unanimously  by  your  committee 
as  a  ballot  for  the  petitioner. 

As  a  result  of  the  examination  of  the  ballots  your  committee 
report  that  their  findings  indicate  that  George  A.  Whitney 
received  the  second  largest  number  of  votes  in  the  said  repre- 
sentative   district,     and    they    therefore    recommend    that    the 


WHITNEY  V.   COBB.      HOUSE,    1915.  57 

petitioner  be  declared  a  duly  elected  member  of  the  House  of 
Representatives  from  the  Tenth  Worcester  Representative 
District. 

[The  report  of  the  committee  was  negatived.  —  House  Journal, 
p.  296. 

An  order  calling  for  a  special  election  was  adopted.  —  House 
Journal,  p.  315.] 


58  MASSACHUSETTS  ELECTION  CASES  —  1920. 


House  —  1920. 

Committee  on  Elections.  —  Messrs.  Elihu  D.  Stone  of  Boston,  chairman; 
Everett  W.  Coleman  of  Orange,  William  L.  Stedman  of  Methuen, 
John  A.  White  of  North  Brookfield,  clerk,  James  A.  Torrey  of  Beverly, 
James  A.  Goode  of  Boston  and  Tony  A.  Garofano  of  Lynn. 

C.  Joseph  Harvey  v.  Charles  D.  Bradbury. 

House  Document,  No.  1269.    Feb.  9,  1920.    Report  by  the  chairman;   Mr. 

Goode  dissenting. 

Pasters  on  Official  Ballot.  —  The  election  laws  relating  to  the  use  of  stickers  or 
pasters  were  enacted  not  merely  to  preserve  the  purity  and  secrecy  of  the  ballot, 
and  to  curb,  in  so  far  as  possible,  corrupt  practices,  but  also  to  ascertain  and  not 
thwart  the  popular  will  honestly  expressed. 

Same.  —  Election  officers  should  refuse  to  accept  ballots  or  stickers  not  in 
conformity  with  law;  if  allowed  to  be  deposited  and  not  counted  the  voter  would 
be  disenfranchised. 

Same.  —  Where  the  paster  or  sticker  is  pasted  over  the  name  of  the  opposing 
candidate  the  vote  will  be  counted  for  the  substituted  name,  as  the  intent  to  make 
the  substitution  is  clear. 

Same.  —  The  use  of  the  name  of  a  party  as  "  Republican"  on  a  paster,  though 
prohibited  by  statute,  will  not  invalidate  an  election,  in  absence  of  evidence  that 
the  result  of  the  election  was  affected  thereby. 

Same.  —  The  provisions  of  the  statutes  relative  to  the  size  of  type  to  be  used 
on  stickers  is  directory  and  not  mandatory,  and  if  ballots  containing  such  irregular 
stickers  are  once  deposited  in  the  ballot  box  they  should  be  counted. 

Same.  —  If  irregular  stickers  are  deposited  in  the  ballot  box  they  should  be 
counted,  otherwise  the  voter  is  disenfranchised. 

Same,  Irregularities  in.  —  The  intent  of  the  voter  honestly  expressed  should  be 
the  governing  rule,  unless  the  statute  provides  as  a  penalty  for  the  violation  of  its 
provisions  that  the  vote  should  not  be  counted. 

Same.  —  A  voter  is  not  required  to  ascertain  the  legality  of  a  sticker  or  paster 
which  he  is  allowed  by  election  officials  to  paste  on  his  ballot  and  which  ballot  is 
deposited  by  the  voter  in  good  faith. 

Elections,  Irregularities  in.  —  The  illegal  distribution  of  circulars,  etc.,  within 
the  distance  from  the  polls  prohibited  by  statute  will  not  invalidate  an  election 
in  absence  of  evidence  showing  that  the  voters  were  actually  influenced  thereby, 
and  in  the  absence  of  evidence  that  such  distribution  was  authorized  or  consented  to 
by  the  candidate  in  whose  behalf  such  distribution  was  conducted. 

Same.  —  The  House  is  the  judge  of  the  election  and  qualification  of  its  members. 

Same.  —  If  the  intent  of  the  voter  can  fairly  be  determined,  effect  should  be 
given  such  intent  and  the  vote  counted  in  accordance  therewith. 

Same.  —  The  House  will  not  disenfranchise  voters  who  have  deposited  their 
ballots  in  good  faith  unless  so  directed  specifically  by  statute. 

The  committee  on  Elections  to  whom  was  referred  the  pe- 
tition of  C.  Joseph  Harvey  praying  that  he  might  be  allowed 
to  sit  in  the  House  of  Representatives  from  the  Twenty-first 
Suffolk  District,  which  district  comprises  the  town  of  Winthrop, 


HARVEY  V.  BRADBURY.      HOUSE,    1920.  59 

in  place  of  Charles  D.  Bradbury,  the  sitting  member,  has  con- 
sidered the  same  as  well  as  all  the  evidence  offered  by  the  pe- 
titioner in  support  of  his  petition  and  all  the  evidence  offered 
by  the  sitting  member  which  would  in  any  way  affect  his  in- 
terest as  a  member  of  this  House. 

Both  the  petitioner  and  sitting  member  were  represented  by 
learned  counsel,  and  your  committee  has  cause  to  believe  that 
all  facts  material  to  a  correct  view  of  the  case  were  made  to 
appear. 

It  is  agreed  by  all  concerned,  and  your  committee  find  it 
therefore  as  a  fact,  that  the  petitioner,  C.  Joseph  Harvey, 
received  the  Republican  nomination  for  representative  in  the 
General  Court  of  Massachusetts  in  the  primaries  held  in  the 
said  town  of  Winthrop  on  the  twenty-third  day  of  September, 
1919.  In  pursuance  thereof  Harvey's  name  was  duly  printed  on 
the  ballot,  used  in  the  last  State  election  in  the  said  town  of 
Winthrop,  as  the  regular  Republican  candidate  for  representative 
from  the  said  district. 

It  appears  that  Charles  D.  Bradbury,  the  sitting  member, 
who  was  defeated  for  renomination  in  the  said  primaries  by  the 
petitioner,  put  himself  forward,  or,  as  Bradbury  insisted  on  the 
witness  stand,  his  friends  put  him  forward  as  a  candidate  to 
oppose  the  election  of  the  said  Harvey,  the  regular  Republican 
nominee  for  representative.  A  spirited  campaign  followed; 
cards  were  distributed,  letters  were  sent  to  the  voters  of  the 
said  town  of  Winthrop,  political  advertisements  were  inserted 
in  the  newspapers,  and  meetings  held,  on  behalf  of  both  Harvey 
and  Bradbury. 

Prior  to  the  election  the  said  Bradbury  or  his  friends  caused 
stickers  to  be  printed  containing  the  following  inscription:  — 

REPRESENTATIVE  IN  GENERAL  COURT 

Twenty-first  Suffolk  District  Vote     for    ONE 


CHARLES  D.  BRADBURY  of  winthrop  ~— /— — Republican 


These  stickers  were  distributed  to  the  voters  on  the  day  of 
the  election  at  the  voting  places  inside  as  well  as  outside. 
Many  of  the  said  stickers  were  distributed  to  the  voters  in 
envelopes  containing  printed  directions  on  the  outside  as  to 
how  to  use  the  sticker.     It  may  be  necessary  to  add  that  it 


60  MASSACHUSETTS  ELECTION  CASES  —  1920. 

appears  from  the  testimony  presented  to  your  committee  that 
some  of  the  friends  of  Bradbury  made  inquiry  in  the  office  of 
the  Secretary  of  the  Commonwealth  as  to  the  legality  of  the 
said  stickers,  where  they  were  informed  by  Herbert  H.  Boynton, 
the  First  Deputy  Secretary  of  the  Commonwealth,  that  he  saw 
no  reason  why  the  said  stickers  could  not  be  used,  or  words  to 
that  effect. 

About  2  p.m.  on  election  day  Harvey  filed  with  the  election 
officers  a  protest  against  the  use  of  the  said  stickers.  The 
stickers,  however,  continued  to  be  used.  The  election  resulted 
in  favor  of  the  sitting  member,  the  first  count  of  the  ballot 
showing  1,150  votes  for  Harvey  and  1,328  votes  for  Bradbury, 
and  the  recount  showing  1,052  votes  for  Harvey  and  1,314 
votes  for  Bradbury.  All  of  the  said  votes  received  by  Bradbury 
were  on  stickers.  Harvey  objected  to  the  counting  of  the 
Bradbury  stickers.  The  said  Bradbury  was,  nevertheless,  de- 
clared elected  by  a  majority  of  262  votes.  The  result  was 
based  upon  pure,  inflexible,  mathematical  calculation. 

A  certificate  of  election  was  delivered  by  the  clerk  of  the  said 
town  of  Winthrop  to  the  said  Bradbury,  and  he  qualified  as  a 
member  of  this  House. 

It  is  alleged  by  the  petitioner  that  the  election  of  Bradbury 
was  illegal,  and  he  prays,  therefore,  that  he  be  declared  the 
legally  elected  representative  from  the  said  Twenty-first  Suffolk 
District  and  be  granted  a  seat  in  the  House  of  Representatives 
as  representing  the  said  district,  substantially  for  the  following 
reasons: — 

1.  Because  the  said  stickers  used  by  the  said  Charles  D. 
Bradbury  contained  the  political  designation  "Republican," 
which  is  prohibited  by  section  201  of  chapter  835  of  the  Acts  of 
1913,  as  amended  by  chapter  250  of  the  General  Acts  of  1917. 

2.  Because  the  size  of  the  type  which  appeared  on  the  said 
sticker  was  not  in  conformity  with  the  requirement  of  chapter 
835,  section  261,  of  the  Acts  of  1913. 

3.  Because  the  stickers,  after  being  attached  to  the  official 
ballot,  thereby  became  a  part  of  the  official  ballot;  and,  as  the 
sticker  is  attached  to  the  ballot  before  being  marked,  it  placed 
in  this  case  two  names  with  the  same  political  designation  for 
the  same  office  upon  the  ballot  in  violation  of  section  258  of 
chapter  835  of  the  Acts  of  1913,  as  amended  by  chapter  250  of 
the  General  Acts  of  1917. 

4.  Because  the  stickers  were  enclosed  in  envelopes  with 
printed^matter   on    the    envelopes    containing    directions    or   re- 


HARVEY  V.   BRADBURY.      HOUSE,    1920.  61 

quests,  thus  becoming  in  law  a  poster,  handbill,  placard  or 
circular  intended  to  influence  the  action  of  the  voters,  and 
which  envelopes  were  exhibited,  circulated  or  distributed  within 
150  feet  of  the  entrance  of  the  polling  places,  which  is  pro- 
hibited by  chapter  835,  section  280,  of  the  Acts  of  1913. 

5.  Because  many  of  the  stickers  were  pasted  over  the  name 
of  the  said  Harvey.  (For  the  purpose  of  establishing  the  last 
contention,  counsel  for  the  petitioner  moved  that  the  committee 
inspect  and  recount  the  ballots.) 

Your  committee  are  conscious  of  the  task  imposed  upon  them, 
and  they  have  therefore  considered  all  the  questions  involved,  as 
well  as  all  the  evidence  presented,  with  the  greatest  of  care. 
The  scope  of  the  petition  was  widened  for  the  purpose  of  making 
it  possible  for  both  the  petitioner  and  the  sitting  member  to 
present  any  and  every  evidence  that  is  in  any  way  material  for 
the  purpose  of  establishing  their  respective  contentions.  It  is, 
therefore,  safe  to  assume  that  the  petitioner  has  been  given 
every  opportunity  to  present  his  case  in  its  entirety  for  the 
purpose  of  being  able  to  sustain  the  burden  of  proof  which  the 
law  imposes  upon  him. 

Your  committee  have  considered  these  principles  as  funda- 
mental in  coming  to  a  decision  in  this  case:  That  the  statutes 
governing  and  guiding  elections  were  enacted  for  the  purpose  of 
facilitating  an  honest  expression  of  the  people's  will;  that  when- 
ever it  is  possible  to  ascertain  the  true  intent  of  the  voters, 
that  intent  should  prevail;  and  that  no  technicality  should  be 
allowed  to  defeat  the  will  of  the  majority  of  the  people,  unless 
the  statute  specifically  provides,  as  a  penalty  for  the  violation 
of  its  provisions,  that  the  votes  should  not  be  counted.  No 
doubt  such  a  provision  would  raise  a  constitutional  question. 
For  it  must  be  borne  in  mind  that  our  laws  relating  to  elections 
are  enacted  not  merely  to  preserve  the  purity  and  secrecy  of 
the  ballot,  and  to  curb,  in  so  far  as  possible,  corrupt  practices, 
but  to  ascertain  and  not  to  thwart  the  popular  will  honestly  ex- 
pressed. Blackmer  v.  Hildreth,  181  Mass.  29;  Election  Cases 
1853-1885,  French  v.  Bacon,  p.  184.  Says  Judge  Cooley,  elec- 
tion statutes  ought  to  be  tested  with  "a  leaning  to  liberality 
in  view  of  the  great  public  purposes  which  they  accomplish." 
Constitutional  Limitations,  p.  177. 

Thus,  in  the  eyes  of  the  court,  paper  tinged  with  blue  was 
regarded  as  "white"  for  the  purpose  of  satisfying  the  require- 
ment of  the  statute.     People  v.  Kilduff,  15  111.,  492. 

The  words   "Republican  Ticket"   on   the  ballot  were  not  re- 


62  MASSACHUSETTS  ELECTION  CASES  —  1920. 

garded  by  the  court  as  a  distinguished  mark  or  embellishment 
within  the  meaning  of  the  statute,  which  statute  prohibited 
"distinguished  marks  or  embellishments"  to  appear  on  the 
ballot.     Stanley  v.  Manley,  35  Ind.,  275. 

To  take  an  opposite  view  would,  in  the  opinion  of  your  com- 
mittee, do  violence  to  the  sacred  principles  of  representative 
government,  —  the  very  foundation  of  our  democracy.  In 
other  words,  it  is  the  opinion  of  your  committee  that  effect 
should  be  given  to  the  honest  intent  of  the  voters,  if  it  is  possible 
to  ascertain  that  intent,  without  regard  to  technical  rules;  and 
the  intent  of  the  voters,  honestly  expressed,  when  thus  ascer- 
tained, is  to  be  the  governing  rule,  unless  the  statute  provides, 
as  a  penalty  for  the  violation  of  its  provisions,  that  the  votes 
should  not  be  counted. 

It  is  to  be  observed  that  the  provisions  of  the  statutes  relative 
to  the  ballot  have  application  chiefly  to  the  election  officers  in 
so  far  as  they  are  susceptible  to  their  control.  For  it  is,  or  it 
should  be,  the  duty  of  the  election  officers  to  observe  these 
rules  and  regulations,  in  so  far  as  they  can  control  them,  for  the 
purpose  of  safeguarding  the  integrity  of  the  election.  Surely  the 
people  have  no  control  over  the  preparation  of  the  ballot,  nor 
of  the  stickers;  for  the  ballots  as  well  as  the  stickers  are  always 
furnished  on  the  day  of  the  election  by  the  election  officers  ap- 
pointed for  that  purpose,  by  independent  candidates,  or  by 
their  friends.  The  voter  in  but  few  instances  ever  sees  these 
ballots  or  stickers  until  he  approaches  the  polls  to  cast  his  ballot. 
It  would  be  absurd  to  require  the  voter  to  ascertain  the  legality 
of  the  ballot  which  he  is  allowed  by  the  election  officers  to 
paste  upon  the  ballot,  and  which  ballot  containing  the  sticker 
was  deposited  by  the  voter  in  good  faith.  Kirk  v.  Rhoades,  46 
Cal.  398. 

It  is  or  it  should  be  the  duty  of  the  warden  or  the  election 
officers  to  refuse  the  acceptance  of  a  ballot  or  sticker  which  is 
not  in  conformity  with  the  requirements  of  law,  and  point  out 
to  the  voter  the  legal  defect  of  the  same,  if  any,  so  that  the 
voter  may  be  able  to  comply  with  the  requirements  of  the  law 
and  eliminate  the  irregularities.  If  allowed  to  be  deposited  and 
not  counted,  the  voter  would  be  disfranchised.  Therefore,  in 
the  event  of  the  acceptance  of  such  a  ballot  by  the  warden  or 
election  officers,  or  in  the  event  of  the  allowance  of  such  a 
sticker  to  be  pasted  upon  such  a  ballot,  even  though  the  ballot 
or  the  sticker  is  not  in  conformity  with  the  technical  require- 
ments of  the  statute,  such  ballots  containing  such  stickers  will 


HARVEY  V.   BRADBURY.      HOUSE,    1920.  63 

not  be  invalidated,  if  the  ballots  so  deposited  were  the  honest 
and  clear  expression  of  the  intent  of  the  voters,  unless  the 
statute  expressly  forbids  the  counting  of  such  ballots. 

To  entertain  an  opposite  view  would  expose  the  voters  to  the 
mercy  of  the  election  officers,  and  it  would  open  the  door  to 
fraud  on  the  part  of  election  officers  who  might  intentionally 
permit  and  even  encourage  voters  to  deposit  defective  ballots 
in  order  that  they  might  be  rejected,  and  thus  materially  affect 
the  result  in  the  interest  of  one  party  or  the  other.  This  view 
seems  to  give  due  weight  and  scope  to  the  statutes,  and  to 
preserve  the  sanctity  of  the  right  of  suffrage  and  its  free  and 
honest  exercise. 

In  the  absence  of  express  provisions  for  a  penalty  for  the 
violation  of  the  provisions  of  the  statute,  the  determining 
factor  should  be  the  honest  expression  of  the  will  of  the  ma- 
jority, if  that  expression  was  not  in  any  way  affected  by  the 
alleged  irregularities.  The  rule  is  well  stated  by  Mr.  Justice 
Braley  in  Ray  v.  Registrars  of  Voters  of  Ashland,  221  Mass. 
223  (1915):  — 

The  cardinal  rule  is  that  if  the  intent  of  the  voter  can  be  fairly  determined, 
effect  shall  be  given  to  that  intent  and  the  vote  counted  in  accordance  there- 
with. Flanders  v.  Roberts,  182  Mass.  524,  525  and  526,  and  authorities  cited. 
And  his  intention  is  to  be  found  from  the  evidence  of  what  he  did.  If  not 
prohibited  by  statute,  ballots  which  fairly  and  unmistakably  express  the 
voter's  purpose  are  to  be  counted  as  deposited  in  the  ballot  box.  O'Connell  v. 
Matthews,  177  Mass.  518,  521;  Brown  v..  McCollum,  76  Iowa,  479;  State  v. 
Eagan,  115  Wis.  417. 

In  assuming  these  views,  your  committee  have  followed  prece- 
dent and  were  guided  by  the  well-established  proposition  that  the 
House  of  Representatives  is  the  exclusive  judge  of  the  qualifi- 
cations of  its  own  membership.  Dinan  v.  Swig,  223  Mass.  516; 
Constitution,  chapter  1,  Article  III,  section  X. 

Your  committee,  therefore,  deemed  it  proper  to  be  dictated  by 
the  law  of  reason  and  by  the  consciousness  that  this  House  should 
not  be  guilty  of  causing  the  disfranchisement  of  voters  who  have 
deposited  their  ballots  in  good  faith,  unless  it  is  so  directed 
specifically  by  a  valid  statute.  Your  committee  took  pains  to 
remember  that  the  case  at  bar  does  not  merely  involve  the 
personal  interest  and  right  of  both  the  petitioner  and  the  sitting 
member,  but  it  involves  even  the  greater  interest  and  greater 
right  of  the  people  of  the  said  Twenty-first  Suffolk  District,  — • 
the  right  to  determine  for  themselves  as  to  who  shall  be  their 


64  MASSACHUSETTS  ELECTION  CASES  —  1920. 

representative  in  the  General  Court  of  Massachusetts;  a  right 
which  should  be  zealously  shielded  by  this  House. 

No  election  should  be  declared  to  be  void  by  reason  of  the 
violation  of  statutory  provisions,  be  they  even  mandatory, 
without  the  clear  and  explicit  direction  so  to  do  in  the  statute, 
if  the  result  of  the  election  was  in  no  way  affected  by  the 
alleged  violations.  Whether  or  not  the  result  was  affected  is  a 
question  of  fact  for  the  committee  on  Elections,  with  the  ap- 
proval of  this  House,  to  determine. 

In  the  light  of  all  the  surrounding  circumstances,  the  com- 
mittee find  it  as  a  fact  that  the  result  of  the  election  at  issue 
was  in  no  way  affected  by  any  of  the  violations  alleged  by  the 
petitioner,  and  that  there  was  no  confusion  in  the  minds  of  the 
voters  voting  in  the  last  State  election  in  the  said  town  of 
Winthrop.  Beremyer  v.  Kreitz,  135  111.  591-615.  No  com- 
petent evidence  was  presented  by  the  petitioner  to  substantiate 
his  assertion  that  the  voters  of  the  said  town  of  Winthrop  were 
misguided  or  misled  to  an  extent  that  the  result  was  thereby 
affected.  All  of  the  witnesses  who  appeared  for  the  petitioner 
testified  only  as  to  their  opinion  and  not  as  to  their  actual 
knowledge,  —  evidence  which  the  courts  held  not  to  be  ad- 
missible. O'Donnell  v.  Pollock,  170  Mass.  441;  Luce  v.  Parsons, 
192  Mass.  8;  Rice  v.  James,  193  Mass.  458;  Green  v.  Corey,  210 
Mass.  536.  It  is  safe  to  say  that  the  voters  had  a  clear  con- 
ception of  the  exact  political  status  of  both  the  petitioner  and  the 
sitting  member,  and  went  to  the  polls  on  the  day  of  election  with 
a  definite  purpose.  To  assume  otherwise  would,  in  the  opinion 
of  your  committee,  constitute  a  denial  of  the  possession  of 
ordinary  intelligence  on  the  part  of  the  people  of  Winthrop. 

The  insertion  of  the  political  designation  "Republican"  in  the 
Bradbury  sticker  did  in  no  way  influence  the  outcome  of  the 
election,  for  Bradbury  at  the  time  of  the  election  was  the  repre- 
sentative from  the  said  town  of  Winthrop  in  the  General  Court, 
having  been  elected  as  a  Republican.  Hence  Bradbury's  affilia- 
tion with  the  Republican  party  must  have  been  a  matter  of 
common  knowledge  on  the  part  of  the  people  whom  he  repre- 
sented in  this  House.  It  follows,  therefore,  that  the  political 
designation  "Republican"  contained  in  the  sticker  conveyed 
nothing  new  to  the  people  of  Winthrop,  for  one  cannot  convey 
that  which  is  already  known. 

It  is  obvious,  judging  from  the  evidence  of  what  the  voters  did, 
that  the  majority  of  the  voters  of  the  said  town  of  Winthrop, 
voting   in   the   last   State   election,    in   their   wisdom   deemed   it 


HARVEY  V.  BRADBURY.      HOUSE,   1920.  65 

proper  not  to  support  Harvey,  the  regularly  nominated  Re- 
publican candidate  for  representative.  Instead,  they  registered 
their  preference  for  Bradbury  by  a  majority  voting  for  him  in  the 
last  State  election  by  means  of  stickers  pasted  in  the  ballot. 
Surely,  this  House  legally  or  morally  has  no  right  to  question 
the  motives  of  the  people  of  Winthrop,  nor  cast  any  reflection 
upon  the  soundness  of  their  judgment. 

To  apply  the  facts  and  the  principles,  supra,  to  the  specific 
contentions  set  forth  in  the  petition  and  amendments  thereto,  it 
would  follow  that  none  of  them  are  sustained. 

Contention  No.  1,  wherein  the  petitioner  claims  that  the  use 
of  the  word  "  Republican "  on  the  sticker  was  prohibited  and 
thereby  the  election  was  rendered  void,  stands  neither  the  test 
of  law  nor  of  reason.  For,  as  stated  above,  the  mere  technical 
violation  of  a  statutory  provision  will  not  invalidate  an  election 
if  the  result  of  the  election  was  in  no  way  affected  by  the  viola- 
tion in  question,  unless  the  statute  specifically  provides,  as  a 
penalty  for  the  violation  of  any  of  its  provisions,  that  the  votes 
should  not  be  counted.  Assuming,  therefore,  that  the  petitioner 
is  correct  in  his  insistence  that  the  political  designation  "Re- 
publican" contained  in  the  said  sticker  was  prohibited,  yet  the 
effect  of  such  violation,  if  it  be  a  violation,  does  not  necessarily 
suffer  the  election  to  be  void,  since  the  statute  does  not  so  pro- 
vide, and  for  the  reasons,  supra.  Moreover,  your  committee 
find  it  difficult  to  accept  the  petitioner's  view  that  the  employ- 
ment of  the  political  designation  "Republican"  constituted  a 
violation  of  a  mandatory  provision  of  section  201  of  chapter  835 
of  the  Acts  of  1913,  as  amended  by  chapter  250  of  the  General 
Acts  of  1917.  If  it  was  the  intention  of  the  Legislature  in 
enacting  the  said  statutes  thereby  to  prohibit  the  insertion  of 
any  political  designation  in  a  sticker,  unfortunately  the  con- 
struction of  the  statutes  in  question  does  not  permit  the  con- 
veyance of  that  intention,  —  a  defect  which  can  be  cured,  if  a 
cure  be  deemed  necessary,  only  by  additional  legislation. 

All  that  section  280  of  chapter  835  of  the  Acts  of  1913  says  is 
that  stickers  shall  be  subject  "to  all  the  restrictions  imposed  by 
sections  258  and  261"  as  to  political  designations. 

Section  258  of  the  said  chapter  relates  to  the  "Preparation 
and  Form  of  Ballots,"  and  provides  in  part  as  to  the  political 
designations  of  candidates,  as  follows :  — 

To  the  name  of  each  candidate  for  a  state  or  city  office,  except  city  offices 
in  Boston,  shall  be  added  in  the  same  space  his  party  or  political  designation 
or  designations. 


66  MASSACHUSETTS  ELECTION  CASES  —  1920. 

Section  261  relates  to  the  paper,  size,  form  and  type  of  official 
ballots,  and  says  nothing  about  the  political  designation  of 
candidates  for  a  State  office. 

There  is,  therefore,  no  "restriction"  in  either  section  258  or 
261  against  the  use  of  a  political  designation  on  a  sticker.  Ray 
v.  Registrars  of  Ashland,  221  Mass.,  bottom  of  pp.  227,  228. 

Section  258,  quoted  above  as  originally  enacted,  contained  at 
the  end,  after  the  word  "designation,"  the  words  "expressed  in 
accordance  with  section  two  hundred  and  one."  Section  201 
deals  with  "  Certificates  of  Nomination  and  Nomination  Papers," 
and  the  words  "expressed  in  accordance  with  section  two  hun- 
dred and  one"  were  stricken  out  of  section  258  by  section  2  of 
chapter  250  of  the  General  Acts  of  1917,  which  chapter  is  en- 
titled "  An  Act  to  prohibit  the  use  of  political  party  names  on 
nomination  papers  in  certain  cases." 

The  whole  contention  of  the  petitioner  that  the  use  of  the 
word  "Republican"  on  the  Bradley  sticker  was  illegal  is  founded 
upon  the  provisions  of  section  201,  which  by  the  act  of  1917  no 
longer  applies  to  stickers  used  at  an  election,  if  it  were  ever 
meant  to  apply  to  stickers. 

Bradbury  was  not  "nominated  otherwise  than  by  a  political 
party."  He  was  "elected"  by  voters  using  the  stickers  which 
they  were  entitled  to  use. 

Contention  No.  2,  wherein  the  petitioner  claims  that  the  sticker 
was  illegal  because  the  type  was  not  in  conformity  with  the  law 
as  to  size,  is  not  sustained  for  the  reasons,  «upra,  as  well  as  by 
virtue  of  its  own  inherent  weakness.  It  would  be  indeed  ridicu- 
lous to  suggest  that  the  voter  be  required  to  determine  the 
legality  of  the  size  of  the  type  on  the  ballot  as  a  condition 
precedent  to  the  counting  of  the  ballot  deposited  by  him  in  good 
faith.  Besides,  the  statute  relative  to  the  particular  contention 
is  directory  and  not  mandatory.  Ray  v.  Registrars  of  Ashland, 
supra. 

Contention  No.  3,  wherein  the  petitioner  claims  that  the 
ballot  containing  the  stickers  were  illegal  because,  as  the  peti- 
tioner says,  "the  sticker  is  attached  to  the  ballot  before  being 
marked;  it  placed  therefore  in  this  case  two  names  with  the 
same  political  designation  over  the  same  office  upon  the  ballot 
in  violation  of  the  Acts  of  1913,  chapter  835,  section  258,  as 
amended  by  the  General  Acts  of  1917,  chapter  215,  section  2," 
is  not  sustained  by  the  mere  application  of  the  principles  already 
elaborated  upon. 

It  is   to   be   observed   that   the   petitioner,   in   his   contention, 


HARVEY  V.   BRADBURY.      HOUSE,   1920.  67 

relies  upon  the  assumption  that  "the  sticker  is  attached  to  the 
ballot  before  being  marked,"  which  assumption,  however,  is  not 
supported  by  any  evidence.  In  fact,  it  is  possible  for  the  voter 
to  mark  the  sticker  even  before  it  is  attached  to  the  ballot. 
Thus  the  said  contention  is  founded  not  on  a  positive  but  rather 
on  a  speculative  basis. 

The  said  contention  fails  also  because  said  statute  relates  to 
the  preparation  of  the  official  ballot  on  the  part  of  the  election 
officers,  and  does  not  relate  to  the  rights  of  the  voter. 

Contention  No.  4,  wherein  the  petitioner  claims  that  the 
election  of  Bradbury  was  illegal  because  of  the  distribution  of 
an  envelope  within  150  feet  from  the  entrance  of  the  polling 
places,  containing  therein  directions  or  requests  to  the  voters, 
fails  for  the  reasons  contained  above.  '  Moreover,  the  petitioner 
failed  to  establish  two  material  points:  (1)  that  the  distribution 
of  the  said  envelopes  containirig  the  printed  matter  actually  in- 
fluenced the  minds  of  the  voters,  and  thereby  affected  the  out- 
come of  the  election;  and  (2)  that  the  sitting  member  author- 
ized, consented  to  or  knowingly  ratified  the  same.  It  has  been 
ruled  that  even  the  distribution  among  voters  of  checks  redeem- 
able in  liquor,  cigars,  etc.,  at  a  saloon  near  the  polls,  and  the 
distribution  of  refreshments  at  the  polls,  will  not  invalidate  the 
election  if  it  is  not  shown  that  the  voters  were  actually  influ- 
enced by  these  acts,  and  that  these  acts  were  authorized  and 
■consented  to  by  the  sitting  member.  Election  Cases,  1853,  1885, 
Prescott  v.  Grossman,  p.  303.  Finally,  the  statute  itself,  upon 
which  the  said  contention  is  based,  provided  for  the  violation  of 
its  provisions  a  fine  of  not  more  than  $20. 

Contention  No.  5,  wherein  the  petitioner  claims  that  the 
election  was  illegal  because  many  of  the  stickers  were  pasted  over 
the  name  of  Harvey,  is  not  sustained.  The  placing  of  a  sticker 
containing  one  name  over  another  name  indicates  conclusively  the 
intention  of  substituting  one  name  for  another.  If  it  is  placed 
over  another  name  which  is  under  the  title  of  an  office,  it  indi- 
cates conclusively  an  intention  to  substitute  for  that  office  the 
name  upon  the  sticker.  It  would  seem,  therefore,  to  be  con- 
trary to  sound  reason  and  the  judicial  and  legislative  construc- 
tion of  our  statutes  to  say  that  a  ballot  thus  cast  in  good  faith 
and  without  fraud  by  a  legal  voter  should  be  rejected.  Ray 
v.  Registrars  of  Ashland,  cited  above;  Cushing  Law  and  Practice, 
Legislative  Assemblies,  par.  105;  Keller  v.  Robertson,  27  Mich. 
116;    Election  Cases,  1896,  1897;   Opinion  of  the  Attorney-Gen- 


68  MASSACHUSETTS  ELECTION  CASES  —  1920. 

eral,  p.  47.  The  petitioner's  request  for  an  inspection  and  re- 
count of  the  ballots  has  been  therefore  denied. 

Thus,  every  contention  taken  separately  fails,  and  surely  they 
do  not  become  stronger  when  taken  together. 

In  the  light  of  all  the  facts,  supra,  it  is  the  opinion  of  your 
committee  that  the  result  of  the  election  in  the  case  at  bar  was 
the  honest  and  unmistakable  expression  of  the  will  of  the  ma- 
jority of  the  people  voting  in  the  last  State  election  in  the  said 
town  of  Winthrop,  and  therefore  the  will  of  the  people  thus 
manifested  shall  prevail.  Cole  v.  Tucker,  164  Mass.  486;  Brew- 
ster v.  Sherman,  195  Mass.  222;  O'Connell  v.  Matthews,  177  Mass. 
518;  Attorney -General  v.  Campbell,  191  Mass.  497;  Beauchmin 
v.  Flagg,  229  Mass.  23;  Shepard  v.  Sears,  Election  Cases,  1885- 
1897;  Riley  v.  Aldrich,  House  Document  343,  1904;  Moore  v. 
Booth,  House  Document  259,  1910. 

Accordingly,  the  said  Charles  D.  Bradbury  is  the  legally 
elected  representative  from  the  said  twenty-first  Suffolk  district, 
and  is  therefore  entitled  to  retain  his  seat  in  the  House  of  Rep- 
resentatives as  representing  the  said  district.  The  committee 
unanimously  concur  with  the  said  conclusions,  as  to  all  the 
contentions  set  forth  by  the  petitioner,  except  as  to  the  first  one. 

The  petitioner  is  hereby  given  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  —  House  Journal, 
p.  250.] 


CALLAHAN  V.  SWEENEY.      HOUSE,   1921.  69 


House  — 1921. 

Committee  on  Elections  —  Messrs.  Lloyd  Makepeace  of  Maiden,  chairman; 
John  C.  Brimblecom  of  Newton,  Carl  J.  Rolander  of  Worcester, 
Walter  S.  Hale  of  Rockport,  clerk,  Alfred  H.  Whiting  of  Ashburn- 
ham,  William  H.  Grady  of  Springfield  and  William  H.  Winnett  of 
Boston. 

John  A.  Callahan  v.  James  F.  Sweeney. 

House  Document,  No.  1140.    Jan.  27,  1921.     Report  by  Mr.  Lloyd  Make- 
peace, chairman. 

House  of  Representatives.  —  The  House  of  Representatives  shall  be  the  judge  of 
the  returns,  election  and  qualifications  of  its  members. 

Election  Circulars.  —  The  House  will  not  declare  vacant  the  seat  of  a  member, 
on  account  of  the  use  of  a  misleading  circular  or  poster  used  previous  to  the  elec- 
tion, in  absence  of  evidence  that  such  circular  did  actually  mislead  and  influence 
the  voters. 

The  committee  on  Elections,  to  which  was  referred  the  petition 
of  John  A.  Callahan  praying  that  he  be  declared  elected  as 
representative  from  the  Eleventh  Hampden  District,  which 
district  comprises  Wards  5  and  7  in  the  city  of  Holyoke,  and 
be  seated  in  the  place  of  James  F.  Sweeney,  the  sitting  member, 
having  considered  the  same,  as  well  as  all  the  evidence  sub- 
mitted by  the  petitioner  in  support  of  his  petition,  and  all  the 
evidence  offered  by  the  sitting  member  and  the  arguments  of 
counsel  on  behalf  of  each,  hereby  submits  the  following  report:  — 

Both  the  petitioner  and  sitting  member  were  represented  by 
counsel,  the  petitioner  by  Merrill  L.  Welcker,  Esq.,  and  the 
sitting  member  by  Thomas  C.  Maher,  Esq. 

It  appeared  from  the  official  returns  that  were  put  in  evidence 
that  the  whole  number  of  ballots  cast  for  representative  in  the 
Eleventh  Hampden  District  at  the  election  held  on  Nov.  2,  1920, 
was  5,997.  John  A.  Callahan  of  Holyoke  received  2,692;  James 
F.  Sweeney  of  Holyoke  received  3,091;  blanks,  214.  From  these 
figures  it  appears  that  the  sitting  member  received  399  more 
votes  than  the  petitioner. 

Chapter  1,  section  III,  Article  X  of  the  Constitution  of 
Massachusetts  provides  as  follows:  "The  house  of  representa- 
tives shall  be  the  judge  of  the  returns,  elections,  and  qualifica- 
tions of  its  own  members." 


70  MASSACHUSETTS  ELECTION  CASES  —  1921. 

The  only  question  involved  in  this  case  was  the  issuing  be- 
fore the  election,  and  in  the  course  of  the  campaign,  a  circular 
signed  by  the  sitting  member,  which  reads  as  follows :  — 

Hold  This  for  Future  Use. 

Photograph  Voters  of  Wards  5  and  7. 

of  Re-elect 

James  F.  Sweeney.  James  F.  Sweeney,  Representative. 

Experienced  and  Capable  to  look  after 

Your  Legislative  Needs. 

Served  your 

City  State  and  Nation 

Alderman,  Representative,  Soldier 

To  the  Voters. 

I  desire  to  call  your  attention  to  the  fact  that  after  serving  you  honorably 
and  faithfully  for  the  past  year  as  your  representative  at  the  State  House, 
Boston,  from  the  Eleventh  Hampden  District  (Wards  5  and  7),  that  I  am  a 
candidate  for  re-election,  and  seek  your  consideration  at  the  polls  Tuesday, 
November  2. 

Having  served  three  years  on  the  board  of  aldermen,  fifteen  months  in  the 
United  States  Army  (twelve  months  overseas)  and  for  the  past  year  your 
representative,  and  with  the  experience  gained,  I  can  assure  you,  if  I  am  re- 
elected, I  will  be  in  a  position  to  benefit  my  city  and  district. 

Having  been  guided  by  my  district  on  matters  of  importance  which  have 
come  before  me  for  consideration  the  past  year,  such  as  the  Holyoke-Spring- 
field  Bridge  Bill,  Sunday  Baseball  Bill,  Maternity  Bill,  and  Chamberlain's 
Sex-Hygiene  and  Birth  Control  Bill,  and  numerous  others,  I  can  assure  you, 
you  will  not  make  any  mistake  by  voting  for  me. 

HOLYOKE    AND   SPRINGFIELD    BRIDGE   BlLL. 

By  untiring  efforts  by  myself  and  the  other  representatives  we  were  able  to 
get  a  favorable  report  from  the  legislative  roads  and  bridges  committee  which 
saved  the  city  of  Holyoke  approximately  one-half  million  dollars  ($500,000). 
The  report  was  laid  on  the  table  until  the  next  session.  Do  you  want  to  change 
your  representative  now? 

To  the  Women  Voters. 

Below  are  two  of  the  most  important  bills  which  have  come  before  the 
Legislature  in  years,  and  which  every  woman  should  read  and  give  it  plenty 
of  consideration  before  she  decides  to  change  her  representative. 

Maternity  Benefit  Bill. 

A  bill  to  give  aid  to  expectant  mothers,  before  and  after  confinement  with 
skilled  nurses  and  medical  attendance,  for  which  she  pays  if  she  is  able.  I 
voted  for  this  bill,  but  it  was  referred  to  the  next  session.  This  is  no  time  to 
change  your  representative. 


CALLAHAN  V.  SWEENEY.      HOUSE,    1921.  71 


Chamberlain's  Sex-hygiene  Bill. 

This  bill,  better  known  as  the  Chamberlain  Physical  Health  Bill,  which  if 
it  became  a  law  would  mean  nothing  more  than  centralization  of  power  which 
would  be  given  to  men  appointed  to  the  office,  and  if  you  were  not  satisfied 
with  the  course  laid  out  to  your  children,  your  only  redress  is  an  appeal  to  the 
Governor. 

A  bill  which  would  be  compulsory  teaching  of  sex-hygiene  and  birth  control 
to  children,  ten  and  twelve  years  old,  against  the  parents'  wishes. 

A  bill  which  would  take  the  child  away  from  the  parent  and  put  them  under 
the  direct  supervision  of  the  State. 

A  bill  which  would  disrupt  the  morals  of  your  children. 

I  bitterly  opposed  this  bill  on  the  grounds  that  the  child  belongs  to  the 
parent  and  not  the  State,  and  if  they  must  have  physical  training  it  should  be 
under  the  control  of  your  local  school  board,  as  it  is  the  school  that  is  public, 
not  the  child.    Again  I  ask,  do  you  want  to  change  your  representative? 

My  opponent,  who  was  elected  to  the  office  of  school  committeeman  last 
year,  and  has  two  more  years  to  serve,  openly  boasts  he  will  not  resign  if  he  is 
elected  as  representative. 

My  opponent  is  also  a  sexagenarian,  and  in  my  opinion  would  not  be  able 
to  serve  your  district  properly. 

And  so  I  make  this  personal  appeal  to  your  reason,  in  closing,  with  the  as- 
surance that  you  will  not  regret  your  action  in  voting  for  me. 

Yours  very  truly, 

Representative  James  F.  Sweeney. 

Note.  —  Don't  be  misled  with  the  prohibition  issue.  Why  look  for  some- 
thing that  we  already  have?  No  man  whom  you  elect  to  serve  you  in  Boston 
has  anything  to  do  about  the  Volstead  Act.  Your  Congressmen  in  Washington 
are  the  only  body  who  have  the  power. 

The  petitioner  contended  that  the  sitting  member  inserted  in 
said  circular  a  section  headed,  "  Chamberlain's  Sex-Hygiene 
Bill,"  which  heading  appeared  in  prominent  black  type,  when  in 
fact,  the  actual  title  of  said  Chamberlain's  bill  was,  "To  provide 
Physical  Training  in  the  Public  Schools  and  Normal  Schools," 
and  that  near  the  end  of  said  section  the  following  words  were 
inserted:  "My  opponent  is  also  a  sexagenarian,  and  in  my 
opinion  would  not  be  able  to  serve  your  district  properly,"  and 
that  as  a  result  of  the  sitting  member's  characterization  of  the 
title  of  said  act,  together  with  the  use  of  the  word  "sexage- 
narian," printed  in  italics,  said  circular  was  intended  to  and  did 
in  fact  place  him  in  a  false  position  before  the  people  of  said 
district  and  influenced  a  large  number  of  voters  against  him, 
and  that  the  voters  concluded  from  the  reading  of  said  circular 
that  a  sexagenarian  was  a  person  who  believed  in  teaching  the 
sex  relations  to  the  pupils  in  the  public  schools. 


72  MASSACHUSETTS  ELECTION  CASES  —  1921. 

The  committee  have  carefully  considered  the  facts,  together 
with  the  exhibits  introduced  and  the  arguments  of  counsel,  and 
find  that  the  petitioner  is  sixty-two  years  of  age,  and  that  the 
word  "sexagenarian"  is  defined  in  the  Century  Dictionary  as 
meaning  "A  person  sixty  years  of  age;  or  between  sixty  and 
seventy." 

The  committee  also  find  that  the  petitioner  has  not  maintained 
his  contention  that  the  voters  of  the  said  district  were  influenced 
or  misled  by  said  circular  to  the  extent  that  the  result  of  said 
election  was  thereby  affected.  To  assume  that  they  were  so 
influenced  or  misled  would  constitute  a  denial  of  the  possession 
of  ordinary  intelligence  on  the  part  of  said  voters  of  the  Eleventh 
Hampden  District.  The  committee  have  therefore  come  to  the 
conclusion  that  the  election  in  the  case  at  hand  was  the  ex- 
pression of  the  will  of  the  majority  of  the  voters  at  said  election 
in  the  said  Eleventh  Hampden  District,  and  that  the  will  of  the 
people  thus  manifested  should  prevail. 

The  petitioner  is  therefore  given  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  —  House  Journal, 
p.  187.J 


BULLOCK  &  LATTIMORE  V.   BURKE  &  DRISCOLL.      HOUSE,  1921.  73 


House  — 1921. 

Committee  on  Elections.  —  Messrs.  Lloyd  Makepeace  of  Maiden,  chairman; 
John  C.  Brimblecom  of  Newton,  Arthur  E.  Beane  of  Cambridge, 
Walter  S.  Hale  of  Rockport,  clerk,  Alfred  H.  Whitney  of  Ashburn- 
ham,  William  H.  Grady  of  Springfield  and  William  H.  Winnett  of 
Boston. 

Matthew  W.  Bullock  and  Andrew  B.  Lattimore  v.  Frank 
J.  Burke  and  Timothy  J.  Driscoll. 

House  Document,  No.  1501.    April  5,  1921.     Report  by  Lloyd  Makepeace, 
chairman;  Mr.  Brimblecom  dissents  to  part  of  report. 

House  of  Representatives.  Qualifications  of  Members.  —  Statements  made  by  a 
member  on  the  floor  of  the  House  will  not  be  allowed  to  determine  or  affect  his 
qualifications  as  a  member  of  another  General  Court. 

Same.  —  Statements  by  a  representative  that  he  does  not  represent  a  certain 
class  of  voters  in  his  district  will  not  be  allowed  to  affect  his  qualifications  as  a 
member. 

Same.  Corrupt  Practices.  —  Offences  against  the  corrupt  practice  statutes  when 
trivial  and  unimportant  will  not  affect  the  election  of  a  member. 

Fraud  and  Intimidation.  —  The  question  in  each  case  must  be,  has  the  great 
body  of  the  electors  had  an  opportunity  to  express  their  choice  through  the  medium 
of  the  ballot  and  according  to  law,  and  this  question  must  be  decided  in  the  light 
of  all  the  facts  and  circumstances  shown  in  the  evidence. 

Same.  —  There  is  no  valid  ground  for  contesting  an  election  on  account  of  al- 
leged intimidation  if  the  result  would  not  be  changed,  and  such  would  be  the  event 
unless  a  number  of  voters  had  been  prevented  from  voting,  sufficient  to  have  varied 
the  result. 

Fraud  and  Intimidation.  —  The  sending  to  the  voters  of  a  district  of  a  circular 
containing  misleading  and  false  statements  in  respect  to  a  candidate  for  the  House 
will  not  invalidate  an  election,  if  such  circular  is  not  shown  actually  to  have  influ- 
enced voters,  or  to  have  been  authorized,  consented  to,  or  knowingly  ratified  by  the 
candidate  in  whose  behalf  the  same  was  sent,  nor  unless  it  appears  that  the  result 
of  the  election  was  materially  affected  thereby. 

Same.  —  Fraud  to  invalidate  an  election  must  be  shown  to  have  affected  the  re- 
sult, and  such  fraud  must  be  known  and  ratified  by  the  candidate. 

Both  the  petitioners  and  the  sitting  members  were  represented 
by  counsel,  the  petitioners  by  Charles  F.  Rowley,  Esq.,  and  the 
sitting  members  by  Homer  Albers,  Esq. 

The  committee  heard  the  parties  on  the  eighth,  ninth,  fif- 
teenth, sixteenth  and  twenty-fourth  days  of  February,  1921,  and 
summoned  many  witnesses  at  the  request  of  both  the  petitioners 
and  the  sitting  members. 

The  committee  on  Elections,  to  which  was  referred  the  petition 
of    Matthew    W.    Bullock   and    Andrew    B.    Lattimore   that   the 


74  MASSACHUSETTS  ELECTION  CASES  —  1921. 

seats  occupied  by  Frank  J.  Burke  and  Timothy  J.  Driscoll  as 
representatives  from  the  Thirteenth  Suffolk  Representative  Dis- 
trict be  declared  vacant  and  that  an  election  be  held  to  fill 
said  seats  (House,  No.  269),  and  the  petition  of  the  said  Bullock 
and  Lattimore  that  they  be  declared  the  duly  and  legally  elected 
members  of  the  House  from  the  Thirteenth  Suffolk  Representa- 
tive District  (House,  No.  270),  having  considered  said  petitions 
as  well  as  all  the  evidence  submitted  by  the  petitioners  in  support 
of  their  petitions,  and  all  the  evidence  offered  by  the  sitting  mem- 
bers, and  the  arguments  of  counsel  on  behalf  of  each,  and  after 
having  given  the  same  patient  and  thorough  study,  hereby 
submits  the  following  report:  — 

The  Thirteenth  Suffolk  Representative  District  is  composed  of 
Ward  13  of  the  city  of  Boston.  According  to  the  official  returns, 
the  vote  for  representative  in  that  district  on  Nov.  2,  1920, 
was  as  follows :  — 

Matthew  Washington  Bullock  of  Boston 2,938 

Frank  J.  Burke  of  Boston 3,074 

Timothy  J.  Driscoll  of  Boston         . 3,030 

Andrew  Berkeley  Lattimore  of  Boston     ......  2,859 

The  petitioners  alleged:  — 

1.  That  they  were  the  duly  nominated  Republican  candidates 
in  the  Thirteenth  Suffolk  District  for  members  of  the  House  of 
Representatives  for  the  year  1921,  and  that  they  were  defeated 
at  the  election  held  Nov.  2,  1920,  by  a  plurality  placed,  ac- 
cording to  the  figures  in  a  recount,  at  92  and  137,  respectively; 
that  certain  persons  registered  and  duly  entitled  to  vote  were 
willing  and  prepared  to  vote  for  your  petitioners  at  said  election; 
that  such  persons  did  not  vote  through  fear  and  intimidation 
caused  by  a  circular  letter  bearing  the  title  "Massachusetts 
Election  Commission,"  and  purporting  to  be  signed  by  Mr. 
Malcolm  A.  Webster,  secretary,  a  copy  of  which  is  attached 
hereto,  which  letter  was  received  by  them  through  the  mail; 
that  said  letter  stated  that  there  had  been  presented  to  the 
office  of  the  Massachusetts  Election  Commission  evidence  to 
the  effect  that  the  recipient  of  the  letter  had  been  illegally 
registered  from  the  address  at  which  he  or  she  had  registered, 
and  that  said  Commission  intended  to  see  that  the  election  law 
in  regard  to  illegal  registration,  which  was  alleged  to  be  section 
2  of  chapter  630  of  the  Acts  and  Resolves  of  the  Legislature  of 
Massachusetts  of  1920,  was  enforced;  that  there  is  no  such 
section   or   act   as   that   alleged   to   be   said  section   of  said   act; 


BULLOCK  &  LATTIMORE  V.  BURKE  &  DRISCOLL.      HOUSE,  1921.  75 

that  the  said  recipient  of  the  said  letter,  with  few  exceptions,  — 
with  exceptions  your  petitioners  believe  to  have  been  unin- 
tended,—  were  colored  voters;  that  said  letters  were  sent  to 
said  voters  because  it  was  believed  by  the  sender  or  senders 
thereof  that  the  said  voters  would  be  intimidated  thereby,  or 
were  more  likely  to  be  intimidated  thereby  than  would  white 
voters;  that  the  sitting  members,  Frank  J.  Burke  and  Timothy 
J.  Driscoll,  or  either  of  them,  had  knowledge,  were  responsible 
for,  or  were  concerned  with  the  printing  and  distributing  of 
said  letter,  or  had  knowledge  thereof  prior  to  the  mailing  thereof; 
that  said  sitting  members,  or  either  of  them,  thereby  intimidated 
or  caused  to  be  intimidated  said  voters  and  committed  or  caused 
to  be  committed  or  connived  at  fraud  in  said  election. 

2.  That  the  aforesaid  Prank  J.  Burke,  the  sitting  member, 
in  his  public  utterances  both  on  the  floor  of  the  House  of  Repre- 
sentatives and  elsewhere  on  divers  occasions,  has  publicly  and 
repeatedly  stated  that  he  did  not  represent  or  intend  to  represent 
a  large  number  of  the  voters  and  other  residents  of  his  district, 
to  wit,  the  colored  voters  and  other  colored  residents  of  said 
district;  that  the  aforesaid  colored  voters  and  other  residents 
constitute  nearly  50  per  cent  of  the  voters  and  other  residents 
of  said  district;  that  the  said  Frank  J.  Burke,  by  the  said  public 
utterances  and  by  the  literature  and  other  matter  which  he 
caused  to  be  published  during  the  political  campaign  immediately 
preceding  the  election  of  Nov.  2,  1920,  has  consistently  shown 
an  attitude  and  purpose  in  relation  to  the  said  colored  voters 
and  residents  inimical  and  hostile  to  them  and  of  such  a  character 
as  to  render  him  wholly  unfit  and  incapable  of  acting  for  and 
representing  the  said  colored  voters  and  other  residents  of  said 
district;  that  the  said  attitude,  purpose  and  character  of  the 
said  Frank  J.  Burke  made  it  wholly  impossible  for  him  faith- 
fully and  impartially  to  discharge  and  perform  his  duties  as 
such  representative  as  required  by  his  oath  of  office;  and  that 
he  is  unfit  to  act  as  and  incapable  of  acting  as  such  representative 
from  said  district. 

3.  That  a  certain  circular,  a  copy  of  which  is  attached  hereto 
and  by  reference  incorporated  herein,  purporting  to  be  signed  by 
certain  persons  representing  themselves  as  the  "  Citizens'  Com- 
mittee of  Roxbury,"  was  immediately,  prior  to  Nov.  2,  1920, 
distributed  to  the  voters  in  the  said  Thirteenth  Suffolk  District; 
that  the  said  circular  contained  certain  statements  of  facts  and 
certain  allegations  of  opinion  in  regard  both  to  the  said  sitting 
members   and   to   your   petitioners,    and   strongly   recommended 


76  MASSACHUSETTS  ELECTION  CASES  —  1921. 

the  election  of  the  said  sitting  members  and  advised  the  defeat 
of  your  petitioners;  that  both  in  the  foreword  to  the  voter  ap- 
pearing on  the  first  page  of  said  circular,  and  thereafter  through- 
out, the  body  of  the  said  circular,  the  said  persons  representing 
themselves  as  the  said  "Citizens'  Committee  of  Roxbury"  pur- 
ported to  be  publishing  their  personal  opinion  of  the  said  sitting 
members  and  of  your  petitioners,  and  purported  to  subscribe  to 
and  endorse  the  said  statements  of  facts  contained  in  the  said 
circular,  whereas,  in  fact,  a  large  proportion  of  the  said  persons 
had  never  seen  the  circular  which  they  purported  to  sign,  a 
large  proportion  of  said  persons  never  signed  the  said  circular 
nor  authorized  another  to  affix  their  signatures  thereto,  and  the 
majority  of  the  said  persons  knew  nothing  of  the  circumstances 
and  facts  set  forth  in  said  circular  over  their  names  as  purporting 
to  emanate  from  them;  that  the  said  Frank  J.  Burke  and 
Timothy  J.  Driscoll,  the  sitting  members,  or  one  of  them,  well 
knowing  the  facts  set  forth  herein,  prepared,  printed  and  dis- 
tributed the  said  circular,  or  caused  or  were  or  was  responsible 
for  the  preparation,  printing  and  distribution  of  said  circular, 
and  that  thereby  the  said  sitting  members  or  one  of  them  com- 
mitted or  caused  to  be  committed  a  fraud  in  said  election. 

4.  That  the  said  sitting  members,  or  either  of  them,  com- 
mitted other  frauds  or  that  other  frauds  were  committed  by 
various  persons  in  their  interest  or  in  their  employ,  which  your 
petitioners  will  more  fully  specify  hereafter. 

The  petitioners  filed  with  the  committee  the  following  bill  of 
particulars :  — 

And  now  come  the  petitioners  in  the  above  entitled  cause  and  in  reliance 
upon  and  in  support  of  the  petition  filed  in  said  cause,  more  specifically  and 
particularly  herein  set  forth  the  grounds  of  their  complaint  against  said  Burke 
and  said  Driscoll. 

1.  That  said  Burke,  although  a  member  of  the  Legislature  of  the  year  1920, 
and  bound  by  his  oath  of  office  impartially  and  fairly  to  represent  all  the 
people  in  his  district  and  the  Commonwealth,  irrespective  of  race,  color  or 
creed,  and  to  support  the  Constitutions,  both  Federal  and  State,  did  publicly 
and  deliberately  incite  race  prejudice  and  hatred,  and  did  say  in  substance 
at  the  following  places  and  upon  the  following  dates,  to  wit:  — 

On  the  floor  of  the  House  of  Representatives,  April  12,  1920. 

At  Douglass  Square,  Boston,  on  or  about  Aug.  00,  1920. 

At  the  Beacon  School,  Mount  Vernon  Street,  Boston,  on  or  about  Oct.  9,  1920. 

At  City  Hall,  Boston,  on  or  about  Nov.  11,  1920. 

At  the  corner  of  Washington  and  Ruggles  streets,  Boston,  on  or  about  Oct.  30, 
1920. 

That  there  were  a  lot  of  colored  people  in  his  district,  he  regretted  to  say;  that 
he  did  not  like  them;  that  they  did  not  vote  for  him,  and  he  was  glad  of  it  because 
he  did  not  represent  them;  that  he  never  would  represent  them;  that  they  were  no 
good,  none  of  them;   that  he  had  no  use  for  them. 


BULLOCK  &  LATTIMORE  V.  BURKE  &  DRISCOLL.      HOUSE,  1921.  77 

2.  That  on  the  day  of  election,  Nov.  2,  1920,  said  Burke  at  the  voting  place 
in  Precinct  3,  Ward  13,  did  without  right,  unlawfully,  and  contrary  to  the 
statutes  of  this  Commonwealth,  go  inside  the  guard  rail  at  said  voting  place, 
and  did  intimidate  one  Charles  Heinz,  Jr.,  in  charge  of  the  ballot  box  at  said 
voting  place,  and  in  consequence  of  said  intimidation  said  Heinz  unlawfully 
and  illegally  refused  to  permit  a  vote  to  be  challenged,  and  said  Heinz  admitted 
before  the  election  commissioners  of  the  city  of  Boston  that  he  had  been  in- 
timidated by  said  Burke,  and  thereupon  resigned  from  his, office. 

3.  That  said  Burke  and  said  Driscoll  did  cause  to  be  printed  and  did  send 
out  a  card  printed  in  white  letters  on  a  black  background,  an  original  being 
appended  to  the  petition  filed  in  said  cause,  for  the  purpose  of  inciting  race 
prejudice  and  of  discrediting  your  petitioners  because  of  their  color;  that  said 
card  was  unsigned  by  said  Burke  or  Driscoll  or  any  person  purporting  to  repre- 
sent them  or  to  act  on  their  behalf,  contrary  to  the  provisions  of  chapter  835  of 
the  Acts  of  1913,  as  amended  by  chapter  783  of  the  Acts  of  1914  and  all  other 
acts  in  amendment  thereof  and  in  addition  thereto. 

4.  That  said  Burke  and  said  Driscoll  did  send  out  a  circular  to  the  voters 
of  the  district  grossly  and  fraudulently  misrepresenting  the  records  and  char- 
acter of  your  petitioners,  a  copy  of  which  is  appended  to  the  petition  filed  in 
said  cause. 

5.  That  said  Burke  and  said  Driscoll,  illegally  and  contrary  to  the  statute, 
did  authorize  and  permit  money  to  be  expended  by  them  for  materials  and 
labor  in  the  preparation  of  said  circular  referred  to  in  specification  No.  3  with- 
out making  a  return  of  the  cost  or  value  of  said  circular  in  their  sworn  return  of 
expenditures  to  the  Secretary  of  the  Commonwealth  for  the  year  1920. 

6.  That  said  Burke  and  said  Driscoll  did  unlawfully  and  illegally  cause  to 
be  printed  on  said  circular  referred  to  in  specification  No.  4  the  names  of  per- 
sons as  alleged  signers  thereof  who  never  had  read  nor  seen  the  contents  of  said 
circular,  and  who  never  had  authorized  the  use  of  their  names  as  signers  thereof. 

7.  That  said  Burke  and  Driscoll  did  fraudulently  and  illegally  circulate  or 
cause  to  be  circulated  among  the  colored  voters  of  the  district  the  circular  letter 
appended  to  the  petition  filed  in  said  cause,  said  circular  being  headed,  "The 
Massachusetts  Election  Commission,"  in  consequence  whereof  many  of  the 
colored  voters  of  said  district,  both  male  and  female,  were  intimidated  and  put 
in  fear  of  voting  for  your  petitioners,  and  did  not  vote.  If  the  persons  so  in- 
timidated and  put  in  fear  had  voted  as  they  desired  and  would  have  except  for 
said  circular,  your  petitioners  would  have  been  duly  elected. 

8.  That  said  Driscoll  did  repeatedly  publicly  state  that  he  was  in  entire 
sympathy  with  the  acts  and  utterances  of  said  Burke  in  regard  to  the  colored 
people  of  the  district  and  the  Commonwealth. 

9.  That  said  Burke  and  said  Driscoll,  by  their  conduct  and  their  utterances, 
have  shown  themselves  to  be  men  so  lacking  in  principle  and  character,  so  will- 
fully unmindful  of  the  sacredness  and  obligations  of  their  oaths  of  office,  as  to 
be  unfit  and  disqualified  to  serve  as  members  of  the  Great  and  General  Court . 

They  also  filed  an  amended  bill  of  particulars,  which  reads  as 
follows :  — 

And  now  come  your  petitioners  and  move  to  amend  their  bill  of  particulars 
filed  in  said  cause  by  striking  out  specification  No.  5  therein,  and  substituting 
therefor  the  following :  — 


78  MASSACHUSETTS  ELECTION  CASES  —  1921. 

5.  That  said  Burke  and  said  Driscoll,  or  one  of  them,  illegally  and  contrary 
to  the  statute,  did  authorize  and  permit  money  to  be  expended  for  or  by  them, 
or  one  of  them,  for  materials  and  labor  in  the  preparation  of  said  card  referred 
to  in  specification  No.  3  without  making  a  return  of  the  costs  or  value  of  said 
card  in  their  or  his  sworn  return  of  expenditures  to  the  Secretary  of  the  Com- 
monwealth for  the  year  1920. 

As  to  the  first  specification:  Frank  J.  Burke,  one  of  the 
sitting  members,  stated  before  the  committee  that  he  repre- 
sented no  class  or  color  of  voters. 

We  find  that  said  Burke  has  on  various  occasions  stated 
publicly  that  he  did  not  represent  or  desire  to  represent  the 
colored  voters  and  did  not  care  for  their  votes.  There  seems  to 
us,  however,  no  legal  objection  to  any  candidate  for  elective 
office  stating  that  he  does  not  care  for  the  votes  of  particular 
persons  or  groups  or  classes  of  persons. 

The  contestants  also  rely  upon  a  speech  of  said  Burke  on  the 
floor  of  the  House  of  Representatives  prior  to  the  election  of 
the  present  House.  In  our  opinion  the  remarks  of  a  member 
which  were  accepted  by  a  prior  House  before  the  election  in 
this  case  should  not  be  the  basis  of  objections  to  his  qualifying 
as  a  member  of  a  subsequent  House.  See  Hinds'  Election 
Cases,  sections  1284-1289,  inclusive. 

As  to  the  second  specification:  That  said  Burke  went  inside 
the  guard  rail  on  the  day  of  election,  Nov.  2,  1920,  and  intimi- 
dated one  Charles  Heintz. 

It  appeared  that  Heintz  was  a  warden  in  Precinct  3  of  said 
Ward  13.  Harriet  C.  Hall,  one  of  the  witnesses  for  the  con- 
testants, testified  that  Burke  had  taken  the  hand  of  a  voter,  to 
wit,  one  Nellie  M.  Dempsey,  and  pushed  her  ballot  into  the 
ballot  box;  that  Burke  was  standing  just  outside  of  the  guard 
rail  at  the  time.  Massachusetts  General  Laws,  chapter  54, 
section  25,  provides  that  "the  guard  rail  shall  be  so  placed  that 
only  persons  inside  thereof  can  approach  within  six  feet  of  the 
ballot  boxes." 

Burke  and  the  officers  of  election  and  said  Nellie  M.  Dempsey 
testified  that  Burke  did  not  touch  Nellie  M.  Dempsey,  and  did 
not  go  behind  the  guard  rail,  nor  thrust  her  arm  or  ballot  toward 
it.     The  evidence  substantiates  these  statements. 

Said  specification  No.  2  further  states  that  Burke  intimidated 
said  Heintz,  and  in  consequence  of  said  intimidation  said  Heintz 
unlawfully  and  illegally  permitted  a  challenged  vote  to  be 
counted.  The  alleged  challenged  vote  was  that  of  said  Nellie 
M.  Dempsey.     It  appeared  that  Nellie  M.  Dempsey  was  a  legal 


BULLOCK  &  LATTIMOKE  V.  BURKE  &   DRISCOLL.      HOUSE,  1921.         79 

voter,  and  had  a  right  to  vote.  Harriet  C.  Hall,  one  of  the 
contestants'  witnesses  and  workers,  testified  that  she  challenged 
or  attempted  to  challenge  the  vote.  This  attempt  was  made 
before  the  voter  entered  the  guard  rail,  and  before  the  ballot 
had  been  marked  by  the  voter.  The  election  officer  testified 
that  he  did  not  hear  any  challenge,  but  it  seems  to  your  com- 
mittee unimportant,  because  Nellie  M.  Dempsey,  according  to 
the  evidence,  clearly  had  a  right  to  vote.  We  find  that  Heintz, 
the  warden,  was  not  intimidated  by  Burke. 

Burke  stood  several  feet  from  the  rail,  and  after  Mrs.  Hall, 
by  her  attempt  at  challenge,  had  delayed  the  voting,  as  she  said, 
for  about  ten  minutes,  Burke  called  out,  "Let  that  woman  vote." 
As  many  voters  were  in  line  awaiting  their  turn  to  vote  it  does 
not  seem  to  your  committee  that  Burke  should  be  criticized 
because  he  asked  that  the  woman  be  allowed  to  vote,  in  order 
that  others  waiting  might  have  an  opportunity  to  approach  the 
polling  place. 

As  to  the  third  specification:  That  the  sitting  members 
caused  to  be  printed  and  distributed  to  between  2,500  and 
3,000  voters  an  unsigned  card  printed  in  white  letters  on  a 
black  background. 

The  contestants  claim  that  this  card  fell  under  the  prohibition 
of  General  Laws,  chapter  55,  section  34.  The  card  was  black, 
and  on  it  there  was  printed  in  white  letters :  "  Re-elect  two 
White  Representatives,  Burke  and  Driscoll."  Pictures  of  these 
two  candidates  also  appeared  on  the  card.  This  card  did  not 
criticise  the  personal  character  or  political  action  of  any  can- 
didate, and  therefore  your  committee  find  that  this  card  did 
not  come  under  the  provisions  of  said  statute.  It  also  appeared 
from  the  evidence  that  the  contestants  themselves  distributed 
throughout  the  district  an  unsigned  card  asking  the  voters  to 
vote  for  them. 

As  to  the  fourth  specification:  That  Burke  and  Driscoll  sent 
a  circular  to  about  2,500  or  3,000  voters  grossly  and  fraudulently 
misrepresenting  the  records  and  character  of  the  contestants. 
A  copy  of  that  circular  is  annexed  to  the  petitions,  and  is  en- 
titled "Foreword." 

With  reference  to  contestant  Bullock,  the  circular,  after  giving 
his  residence,  age  and  birth,  was  as  follows:  — 

Public  record:  None.  Opinion:  A  new  man  in  our  midst,  we  feel  that  the 
nature  of  his  support  is  such  as  to  render  him  an  unfit  candidate  to  represent 
the  entire  people  of  the  district.    We  advise  his  defeat. 


80  MASSACHUSETTS  ELECTION  CASES  —  1921. 

With  reference  to  contestant  Lattimore,  the  circular,  after 
giving  his  residence,  age  and  birth,  was  as  follows :  — 

Public  record:  None.  Opinion:  His  affiliations  and  surroundings  are  such 
as  to  render  him  an  unfit  man  to  represent  the  whole  people  of  this  district. 
We  advise  his  defeat. 

This  circular  thereafterwards  referring  to  the  contestants  said: 
"They  now  seek  to  secure  an  election  through  subterranean  and 
dark  lantern  methods,  hoping  that  they  might  be  swept  into 
public  office  on  an  impending  political  tidal  wave." 

This  circular  bore  the  name  in  print  of  twenty-two  voters  in 
the  district,  called  the  "  Citizens'  Committee."  The  sitting 
members  admitted  that  they  were  instrumental  in  distributing 
this  circular.  We  find  that  said  circular  did  not  grossly  and 
fraudulently  misrepresent  any  material  facts  as  to  the  con- 
testants, as  alleged  in  the  specification. 

As  to  the  Fifth  Specification:  As  amended,  this  specification 
charged  the  sitting  members  with  expending  money  in  prepara- 
tion of  the  card  referred  to  in  specification  No.  3  without  making 
return  of  the  cost  or  value  of  said  card. 

It  appeared  from  the  evidence  that  a  firm  of  printers  and 
publishers,  one  of  whom  was  friendly  with  the  sitting  member 
Burke,  told  Burke  that  they  would  like  to  get  out  something 
for  his  election,  or  to  help  toward  it.  Burke  assented,  and  they 
printed  the  said  card,  using  scrap  card  of  little  or  no  merchant- 
able value.  The  said  printers  procured  cuts  —  pictures  of  the 
sitting  members  —  at  an  expense  of  about  $12.  The  ink  used 
was  testified  to  be  worth  a  few  cents,  and  from  two  to  two  and 
a  half  hours  of  labor  were  consumed  in  the  work,  so  that  the 
total  cost  to  the  printers  or  publishers  was  about  $14.  The  said 
printers,  or  one  of  them,  donated  said  cards  to  Burke,  and 
Burke  and  Driscoll  both  assisted  in  distributing  the  same. 

The  sitting  member  Burke  was  asked  at  the  hearing  before 
this  committee  whether  he  made  any  return  of  that  card,  and 
stated,  "No,  I  did  not  make  any  return  of  that;  that  was  a 
gift.  They  gave  it  to  me.  There  wasn't  anything  of  particular 
value  in  it,  but  my  friend  wanted  to  do  something,  and  I  let 
him  do  it." 

Under  the  Corrupt  Practice  Act,  General  Laws,  chapter  55, 
each  candidate  for  representative  in  the  General  Court  in  a 
district  entitled  to  two  representatives  may  spend  $200  in 
order  to  promote  his  election.  Burke  returned  an  expenditure  of 
$101.35;    Driscoll  returned  $149.25.     It  is  therefore  quite  clear 


BULLOCK  &  LATTIMORE  V.  BURKE  &  DRISCOLL.      HOUSE,   1921.         81 

that  if  the  contribution  of  this  card  should  have  been  included 
in  said  returns,  the  sitting  members  were  still  within  the  limit 
authorized  by  the  statute. 

The  Corrupt  Practice  Act,  Section  6,  further  provides:  — 

This  section  shall  not  prohibit  the  rendering  of  service  by  .  .  .  publishers 
.  .  .  for  which  no  compensation  is  asked,  given  or  promised. 

See  also  the  report  of  the  Attorney-General  of  Massachusetts 
for  1916. 

The  Corrupt  Practice  Act,  section  37  (e)  (2),  further  provides 
that  the  participation  of  a  candidate  in  any  of  the  prohibited 
things  shall  not  be  used  against  him  if  the  same  "arose  from 
inadvertence  or  from  accidental  miscalculation,  or  from  some 
other  reasonable  cause  of  a  like  nature." 

Section  37  (e)  (4)  provides  that  his  participation  in  such 
prohibited  matter  shall  not  be  used  against  the  candidate  if  the 
violations  "were  of  a  trivial,  unimportant  and  limited  character." 

The  committee  find  that  the  neglect  to  include  the  expense 
of  said  card  in  the  return  aforesaid  was  unintentional,  and  that 
it  was  of  such  a  trivial,  unimportant  and  limited  character  that 
it  did  not  come  within  the  provisions  of  said  Corrupt  Practice 
Act. 

As  to  the  Sixth  Specification:  That  the  sitting  members 
caused  to  be  printed  on  the  circular  referred  to  in  Specification 
No.  4  (the  "Foreword"  circular)  the  names  of  persons  as  alleged 
signers  thereof,  who  had  never  authorized  the  use  of  their 
names. 

It  appeared  that  the  circular  bore  the  names  of  twenty-two 
voters.  Fifteen  of  these  were  called  as  witnesses  by  the  con- 
testants. As  to  the  others,  there  was  no  complaint.  Fourteen 
of  these  fifteen  testified  that  the  use  of  their  respective  names 
on  the  circular  was  authorized.  One  witness,  Annie  Woodward, 
testified  that  the  use  of  her  name  was  not  authorized,  and  that 
the  first  she  knew  about  the  circular  was  when  it  came  by  mail. 

From  the  evidence  it  appeared  that  the  facts  relative  to  the 
origin  of  this  circular  were  as  follows:  At  a  meeting  held  at  the 
Roxbury  Courthouse,  Mr.  Driscoll,  one  of  the  sitting  members, 
explained  to  the  assembly  a  plan  of  forming  a  committee  and 
sending  out  a  circular  which  should  show  something  of  the 
qualifications  of  the  sitting  members  as  candidates,  and  their 
fitness  for  office.  Mr.  Driscoll  then  asked  those  who  were  willing 
that  their  names  should   be  thus  used  to  give  in  their  names. 


82  MASSACHUSETTS  ELECTION  CASES  —  1921. 

At  about  this  time  the  other  sitting  member,  Burke,  arose  and 
announced  that  no  one  should  give  a  name  unless  such  person 
was  perfectly  willing  to  sign  such  a  circular.  Annie  Woodward 
was  present  at  this  meeting.  A  young  man,  Frank  Coughlan, 
went  among  the  persons  there  assembled,  to  get  names,  and 
Annie  Woodward  gave  her  name.  There  was  divergent  and 
contradictory  testimony  as  to  whether  she  knew  specifically  the 
purpose  for  which  she  gave  her  name,  but  under  the  circum- 
stances we  do  not  feel  it  necessary  to  decide  this  question, 
because  it  is  clear  from  all  the  circumstances  that  the  sitting 
members  were  acting  in  good  faith. 

As  to  the  Seventh  Specification:  On  the  morning  before 
election  many  voters  received  by  mail  a  circular  letter,  sub- 
stantially in  the  form  annexed  to  the  petitions,  headed:  "The 
Massachusetts  Election  Commission,  State  House,  Boston, 
Massachusetts,"  and  reading  as  follows:  — 

Dear  Madam  :  —  There  has  been  presented  to  this  office  evidence  to  the 
effect  that  you  have  been  illegally  registered  from  [here  the  address  was  in- 
serted].   Below  is  a  copy  of  the  offended  law. 

The  Massachusetts  Election  Commission  intend  to  see  that  this  law  is 
strictly  enforced,  and  will  have  officers  there  to  see  that  it  is. 
Respectfully  yours, 

Mrs.  Malcolm  A.  Webster, 

Secretary. 

Registration  Laws. 
Revised  1920.  Chapter  630,  Sec.  2. 
Whoever  makes  a  false  statement  to  the  Election  Commissioners  or  any  one 
of  their  duly  appointed  registrars,  concerning  their  age,  residence,  or  birth- 
place, or  their  husband's  age,  residence  or  birthplace,  shall  upon  being  found 
guilty  of  said  illegal  registration,  be  fined  the  sum  of  $500,  and  be  imprisoned 
lor  a  period  of  one  year  in  State  Prison. 

There  was  no  evidence  whatever  as  to  who  published,  mailed 
or  were  responsible  for  the  said  circular  letter. 

There  was  no  evidence  that  any  voter  was  influenced  or 
affected  by  said  circular  letter  excepting  one,  Elizabeth  Dicker- 
son,  who  testified  that  because  she  received  that  circular  she 
refrained  from  voting.  In  cross-examination,  however,  she 
testified  that  she  knew  she  was  legally  registered  and  had  the 
right  to  vote. 

McCrary  on  Elections,  section  550,  says:  — 

Slight  disturbances  frequently  occur,  and  are  often  sufficient  to  alarm  a  few 
of  the  more  timid  without  materially  affecting  the  result  or  the  fieedom  of  the 
election. 


BULLOCK  &  LATTIMORE  V.  BURKE  &  DRISCOLL.      HOUSE,   1921.         83 

To  vacate  an  election  on  this  ground,  if  the  election  were  not  in  fact  arrested, 
it  must  clearly  appear  that  there  was  such  a  display  of  force  as  ought  to  have 
intimidated  men  of  ordinary  firmness.    (Harrison  v.  Davis,  1  Bartlett,  341.) 

See  also  Brombcrg  v.  Haralson,  44th  Congress,  Smith,  355,  where 
the  committee  said:  — 

While  there  doubtless  were  isolated  cases  of  violence  artd  intimidation,  the 
election  seems  in  the  main  to  have  been  orderly,  full  and  fair. 

We  find  from  the  evidence  that  the  result  of  the  election  was 
not  materially  affected  by  this  circular.  Immediately  after  the 
circular  letter  had  been  received  by  voters,  one  of  the  con- 
testants, Lattimore,  with  the  help,  as  he  testified,  of  "at  least 
twenty  to  twenty-five"  others,  went  among  the  voters  who  had 
received  the  circular  and  told  them  to  disregard  the  same  as 
"fraudulent"  and  explained  it  to  them.  Lattimore  further 
testified:  "The  voters  had  been  informed  before  election  time." 
It  was  proved  that  seventy-five  named  persons  received  the 
circular.  Of  this  number,  one  was  not  a  legal  voter  in  the 
district,  and  seventy-two  of  the  remaining  seventy-four  voted. 
There  was  no  evidence  offered  as  to  how  the  other  two  would 
have  voted,  nor,  unless  the  above  facts  necessarily  call  for  an 
inference,  as  to  why  they  did  not  vote.  It  also  appeared  that 
still  others  received  the  circular.  Contestant  Lattimore  testified 
that  he  knew  of  400  or  500  of  such  circulars  having  been  received. 

While  it  is  alleged  that  a  large  number  of  persons  have  been 
deterred  from  voting  by  violence  and  intimidation,  the  testimony 
of  those  persons  or  some  of  them  should  be  introduced.  The 
opinions  and  impressions  of  others  are  not  sufficient.  Norris  v. 
Handley,  42d  Congress,  Smith,  68. 

The  majority  of  Burke  was  137;  that  of  Driscoll,  92.  As- 
suming that  500  voters  received  such  a  circular,  it  is  not  sufficient 
proof  that  the  circular  materially  affected  the  result,  for  if  these 
recipients  voted  in  the  same  proportion  as  did  the  75  who 
were  definitely  shown  to  have  received  the  circular,  the  sitting 
members  would  still  have  a  majority. 

The  fraud  must  have  affected  the  result  of  the  election. 
Stimson  v.  Boardman,  Loring  and  Russell's  Election  Cases, 
p.  171. 

The  sitting  members  must  know  of  or  ratify  acts  of  fraud. 
Prescott  v.  Crossman,  Loring  &  Russell's  Election  Cases,  p.  305. 

In  the  case  of  Norris  v.  Handley,  2  Hinds,  Section  887,  there 
was   evidence  of  fraud   and   of  intimidation.      Hon.    George   W. 


84  MASSACHUSETTS  ELECTION  CASES  —  1921. 

McCrary  wrote  the  report  of  the  committee,  in  which  certain 
outrages  are  mentioned,  in  order,  as  the  committee  said,  "to 
denounce  them;"  but  the  committee  reported  that  unless  it 
could  be  determined  with  accuracy  how  many  votes  contestant 
lost,  the  sitting  member  should  not  be  disturbed.  See  also 
Nlblack  v.  Walls,  2  Hinds,  section  891. 

McCrary  on  Elections,  section  564,  says:  — 

The  question  in  each  case  must  be,  has  the  great  body  of  the  electors  had  an 
opportunity  to  express  their  choice  through  the  medium  of  the  ballot  and  ac- 
cording to  law,  and  this  question  must  be  decided  in  the  light  of  all  the  facts 
and  circumstances  shown  in  the  evidence.  We  find  from  the  evidence  before 
us  they  had  such  an  opportunity. 

It  was  held  in  State  v.  Mason  that  there  would  be  no  reason 
to  contest  an  election  if  the  result  could  not  be  changed,  and 
such  would  be  the  event  unless  a  number  of  voters  had  been 
prevented  from  voting,  sufficient  to  have  varied  the  result. 
14  La.  Ann.  505. 

As  a  matter  of  law,  it  is  very  doubtful  whether  such  a  circular 
could  be  construed  or  held  to  constitute  either  fraud  or  intimida- 
tion. It  is,  however,  unnecessary  to  pass  upon  this  question, 
because  of  the  facts  above  stated. 

Your  committee,  while  unanimous  in  condemning  the  printing 
and  distribution  of  such  a  circular,  believing  that  the  same  was 
intended  to  destroy  the  purity  of  the  elective  franchise  and  to 
obstruct  the  orderly  procedure  of  government,  finds  from  all  the 
evidence  that  the  petitioners  have  failed  to  substantiate  their 
claim  that  the  sitting  members,  Frank  J.  Burke  and  Timothy  J. 
Driscoll,  had  knowledge  of,  were  responsible  for,  or  were  in  any 
way  whatsoever  concerned  with  the  printing  and  distributing  of 
said  circular  letter. 

The  committee  also  find  that  said  circular  did  not  intimidate 
or  influence  the  minds  of  a  sufficient  number  of  voters  in  said 
district  so  as  to  have  changed  the  result  of  the  election.  See 
Stimson  v.  Boardman,  supra. 

It  appeared  from  the  evidence  that  out  of  a  total  of  7,667 
registered  voters  in  the  district,  6,564  voted  at  the  election,  or 
85.61  per  cent  of  the  whole  number.  A  still  larger  proportion  of 
the  registered  women  voters  participated  in  the  election,  93  per 
cent  of  those  registered  casting  their  ballots. 

As  to  the  Eighth  Specification:  That  the  sitting  member 
Driscoll  repeatedly  publicly  stated  that  he  was  in  sympathy  with 
the  acts  and  utterances  of  the  sitting  member  Burke. 


BULLOCK  &  LATTIMORE  V.  BURKE  &  DRISCOLL.      HOUSE,   1921.        85 

The  committee  find  that  the  allegation  is  not  sustained. 

As  to  the  Ninth  Specification:  That  the  sitting  members  "by 
their  conduct  and  their  utterances  have  shown  themselves  to  be 
men  so  lacking  in  principle  and  character,  so  wilfully  unmindful 
of  the  sacredness  and  obligations  of  their  oaths  of  office,  as  to 
be  unfit  and  disqualified  to  serve  as  members  of  the  Great  and 
General  Court." 

The  committee  find  that  the  contestants  have  failed  to  prove 
that  the  allegations  in  said  ninth  specification  are  true. 

The  committee  therefore  find  that  the  allegations  set  forth 
in  the  petitions  and  specifications  are  not  sustained,  and  recom- 
mend that  the  petitioners  be  given  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  —  House  Journal, 
p.  712.] 

Minority  Report. 

The  undersigned  fully  and  heartily  concurs  with  the  majority 
of  the  committee  in  all  its  conclusions,  so  far  as  they  affect 
Representative  Timothy  J.  Driscoll,  one  of  the  sitting  members. 

He  also  concurs,  in  general,  with  the  conclusions  reached  by 
the  majority  of  the  committee  on  the  first  eight  specifications  as 
they  affect  the  other  sitting  member,  Representative  Frank  J. 
Burke. 

He  dissents,  however,  from  the  findings  reached  by  the 
majority  of  the  committee  on  specification  nine  as  to  said  Burke, 
and  is  of  the  opinion  that  the  claims  of  the  contestants  have  been 
substantiated,  to  wit,  that  said  Burke  has  by  his  conduct  and 
utterances  shown  himself  to  be  so  lacking  in  principle  and 
character,  so  wilfully  unmindful  of  the  sacredness  and  obligations 
of  his  oath  or  office,  as  to  be  unfit  to  serve  as  a  member  of  the 
Great  and  General  Court. 

This  opinion  is  based  on  evidence  before  the  committee  that 
Burke  had  repeatedly  indicated,  both  in  public  speeches  and  in 
private  conversation,  his  utter  contempt  of  members  of  the 
negro  race,  and  had  used  insulting,  obscene  and  profane  language 
regarding  colored  men  and  women. 

It  is  true,  as  the  majority  of  the  committee  maintain,  that 
there  is  no  "legal  objection"  to  a  candidate  for  office  stating  that 
he  does  not  care  for  any  particular  votes,  but  it  is  equally  true 
that  the  House  of  Representatives  may  take  this  attitude  into 
consideration  in  deciding  whether  or  not  a  representative  making 


86  MASSACHUSETTS  ELECTION  CASES  —  1921. 

such  remarks  is  a  fit  person  to  assist  in  preparing  laws  for  the 
government  of  the  whole  people. 

It  should  also  be  borne  in  mind  that  the  good  name  of  the 
House  of  Representatives  is  involved  quite  as  much  as  that  of 
the  member  in  question,  and  that  in  determining  this  matter 
the  House  of  Representatives  is  not  confined  to  strict  questions 
of  law,  and  may  use  its  best  judgment  as  to  whether  Burke  is 
fit  to  sit  in  our  councils  in  the  conduct  of  the  affairs  of  the 
Commonwealth  of  Massachusetts. 

John  C.  Brimblecom. 


WHEELER  V.  CARTER.      SUP.  JUD.  CT.,   1902.  87 


SUPREME   JUDICIAL   COURT. 

Henry  A.   Wheeler  v.  Sidney  B.   Carter  and  Others. 

(Reported  in  180  Mass.  382.) 

■ 

Worcester,  Dec.  6,  1901  —  Jan.  27,  1902.    Present,  Holmes,  C.  J.,  Knowlton, 
Morton,  Lathrop  and  Hammond,  JJ. 

Election  Officer.  —  The  provisions  of  St.  1898,  c.  548,  sec.  173,  prohibiting  a 
candidate  for  election  from  acting  as  an  election  officer  in  a  voting  precinct,  does 
not  apply  to  the  moderator  of  a  town  meeting. 

Same.  —  St.  1898,  c.  548,  sec.  179,  provides  that  the  selectmen  of  towns  not 
divided  into  voting  precincts  shall  appoint  tellers  at  least  five  days  before  an  elec- 
tion, and  that  the  presiding  officers  at  the  election  may  appoint  additional  tellers. 
At  a  town  election  the  selectmen  had  failed  to  appoint  tellers,  and  the  town  clerk, 
presiding  before  the  election  of  the  moderator,  appointed  tellers  who  acted  through- 
out the  meeting.  Semble,  that  the  authority  to  appoint  additional  tellers  included 
the  right  to  act  when  the  selectmen  had  failed  to  appoint  any  previously  and  that 
the  appointment  was  good,  and  held,  that  at  any  rate  the  tellers  were  de  facto  officers, 
and  an  irregularity  in  their  appointment  would  not  affect  the  legality  of  the  election. 

Election.  —  If  a  town  clerk  fails  to  record  the  number  of  votes  cast  at  an  election 
where  such  a  record  is  required,  this  does  not  invalidate  the  election.  In  such  a 
case  the  clerk  has  power,  and  it  would  be  his  duty,  to  amend  the  record  and  state 
the  facts. 

Town  Clerk.  —  St.  1898,  c.  548,  sec.  373,  providing  for  the  punishment  of  a  city 
or  town  clerk  who  fails  to  make  a  record  of  the  votes  cast  at  an  election,  does  not 
apply  to  the  record  of  the  election  of  town  officers  at  a  general  meeting  of  the  in- 
habitants of  a  town. 

Evidence.  —  Evidence  that  certain  voters  in  an  open  town  meeting  refrained  from 
voting  because  a  candidate  for  selectman  acted  as  moderator,  is  immaterial  and 
inadmissible. 

Town  Meeting.  —  An  article  in  the  warrant  of  a  town  meeting  was  "to  choose 
all  necessary  town  officers  for  the  ensuing  year."  The  town  had  accepted  St. 
1898,  c.  548,  sec.  335,  which  required  that  the  selectmen  should  be  elected  for  a 
term  of  three  years.  Held,  that  the  article  was  sufficient;  that  to  choose  officers 
for  the  ensuing  year  was  to  choose  them  according  to  the  law  in  force. 

Petition  of  Henry  A.  Wheeler  for  a  writ  of  mandamus  com- 
manding Edmund  W.  Wheeler  to  desist  from  acting  as  selectman 
of  the  town  of  Berlin,  and  commanding  the  two  other  re- 
spondents, as  selectmen  of  that  town,  to  recognize  the  petitioner 
as  selectman,  elected  on  March  4,  1901,  for  a  term  of  three 
years,  filed  April  15,  1901. 

The  case  was  heard  by  Loring,  J.,  who  was  of  opinion  that 
the  writ  should  issue,  but  at  the  request  of  the  respondents  re- 
ported the  case  for  the  consideration  of  the  full  court,  such 
order  to  be  entered  as  law  and  justice  might  require. 

It  appeared  that  the  petitioner  acted  as  moderator  of  the 
meeting  at  which  he  contended  that  he  was  elected  selectman. 


05  MASSACHUSETTS  ELECTION  CASES  —  1902. 

The  report  of  the  justice,  after  stating  that  he  had  refused  to 
give  certain  rulings  requested  by  the  respondents,  continued  as 
follows :  — 

I  ruled  that  St.  1898,  c.  548,  sec.  173,  applied  to  the  election 
of  the  petitioner  as  selectman  on  the  fourth  day  of  March, 
1901.  I  ruled  that  the  petitioner  was  not  ineligible  to  be  voted 
for  as  a  candidate  for  the  office  of  selectman  at  the  meeting  of 
March  4,  1901. 

I  found  as  a  fact  that  the  ballot  box  was  held  by  the  moderator 
while  the  ballots  were  being  deposited;  that  after  the  balloting 
was  declared  closed,  he  upset  the  ballot  box  upon  the  table  and 
took  part  in  assorting  the  ballots;  and  further,  that  while  the 
ballots  were  being  counted  by  Sidney  B.  Carter  and  James  E. 
Andrews,  two  of  the  respondents  in  this  petition  who  had  been 
appointed  tellers  by  the  town  clerk  before  the  petitioner  was 
elected  moderator,  he  stood  by  and  corrected  an  erroneous 
count  made  by  one  of  them  in  one  instance,  though  he  did  not 
at  that  time  undertake  to  count  or  to  handle  the  ballots  which 
were  being  counted.  I  also  found  that  in  fact  sixty-five  ballots 
were  cast  for  the  petitioner  for  the  office  of  selectman,  and  sixty- 
three  ballots  were  cast  for  Edmund  W.  Wheeler,  and  that 
thereupon  the  petitioner  was  declared  elected  by  Sidney  B. 
Carter.  I  excluded  evidence  offered  to  show  that  two  persons 
refrained  from  voting,  and  that  the  reason  that  they  refrained 
from  voting  was  because  the  moderator  was  a  candidate  for  the 
office  of  selectman. 

I  was  of  opinion  that  these  facts  do  not  constitute  a  defence, 
and  so  ruled. 

I  found  that  the  selectmen  of  the  town  did  not  appoint  tellers 
as  provided  by  St.  1898,  c.  548,  sec.  179,  but  that  the  town 
clerk,  who  called  the  meeting  to  order,  appointed  the  respondents 
Sidney  B.  Carter  and  James  E.  Andrews  tellers,  and  they  acted 
as  tellers  throughout  the  town  meeting. 

I  ruled  that  they  were  legally  appointed  tellers.  I  find  that 
they  were  tellers  d>  facto,  and  I  ruled  that  the  election  of  the 
town  officers  was  not  rendered  void  by  the  fact  if  it  is  a  fact 
that  they  were  not  legally  appointed  tellers. 

I  found  that,  in  the  record  made  by  the  town  clerk,  the 
number  of  ballots  cast  for  the  office  of  selectman  was  not  stated, 
but  it  was  stated  that  the  petitioner  was  elected. 

I  also  found  that  the  petitioner  was  declared  elected  to  the 
office  of  selectman  by  the  respondent,  Sidney  B.  Carter. 


WHEELER  V.  CARTER.      SUP.  JUD.  CT.,   1902.  89 

The  respondents  contend  that  (St.  1898,  c.  548,)  section  373 
not  having  been  complied  with,  the  election  is  void.  In  my 
opinion  section  373  does  not  apply  to  the  record  made  by  the 
town  clerk  of  the  election  of  town  officers  elected  in  open  town 
meeting,  and  if  it  did,  it  would  not,  in  my  opinion,  render  the 
election  void;  section  373  manifestly  applies  to  returns  which 
have  to  be  transmitted  by  the  town  to  be  canvassed  by  other 
returning  boards. 

I  found  as  a  fact  that  St.  1898,  c.  548,  sec.  335  has  been 
duly  adopted  by  the  town  of  Berlin. 

I  found  as  a  fact  that  at  the  town  meeting  of  the  inhabitants 
of  the  town  of  Berlin,  held  on  April  3,  1901,  the  vote,  a  copy 
of  which  is  annexed  to  the  return  in  this  cause,  marked  Exhibit  2, 
was  adopted  after  a  vote  was  taken  in  which  the  inhabitants  of 
the  town  of  Berlin  elected  Carter  and  Andrews  and  Edmund  W. 
Wheeler  as  selectmen. 

To  the  foregoing  rulings  of  law  the  respondents  seasonably 
excepted. 

The  vote  above  referred  to  as  marked  Exhibit  2,  after  a 
recital  of  facts  in  regard  to  the  election  of  the  petitioner  at  the 
meeting  of  March  4,  declared:  "Now,  therefore,  it  is  voted  that 
the  town  hereby  declares  the  ballot  taken  for  the  election  of 
selectman  at  said  meeting  to  be  null  and  void,  and  that  the 
office  of  selectman  undertaken  to  be  filled  at  that  meeting  is 
now  vacant." 

H.  Parker  and  A.  P.  Rugg  for  the  petitioner. 

C.  F.  Choate,  Jr.  (D.  I.  Walsh  with  him),  for  the  respondents. 

Knowlton,  J.  The  St.  1898,  c.  548,  sec.  178,  is  as  follows: 
"No  person  shall  at  a  state,  city  or  town  election  be  eligible  or 
act  as  an  election  officer  in  a  voting  precinct  in  which  he  is  a 
candidate  for  election,  and  if  a  person  appointed  an  election 
officer  becomes  such  a  candidate,  and  does  not  forthwith  resign 
his  office,  the  mayor  or  selectmen  shall,  if  he  is  a  candidate  at  a 
state  election,  remove  him  from  office  before  the  first  day  of 
November,  or,  if  he  is  a  candidate  at  a  city  election,  the  mayor 
shall  so  remove  him  at  least  eight  days  before  the  day  of  the 
election,  or  if  he  is  a  candidate  at  a  town  election,  the  selectmen 
shall  remove  him  before  the  election."  The  most  important 
question  in  this  case  is  whether  the  statute  applies  to  the  moder- 
ator of  the  annual  town  meeting  in  a  town  which  does  not  vote 


90  MASSACHUSETTS  ELECTION  CASES  —  1902. 

by  precincts,  so  that  if  he  is  a  candidate  for  election  to  another 
town  office,  it  is  the  duty  of  the  selectmen  to  remove  him  from 
his  office  of  moderator.  Under  the  first  section  of  this  chapter 
a  moderator,  in  the  performance  of  a  part  of  the  duties  of  his 
office,  acts  as  an  election  officer.  The  language  is:  '"Election 
officer'  shall  apply  to  wardens,  clerks,  inspectors  and  ballot 
clerks,  and  to  their  deputies  when  on  duty,  and  also  to  select- 
men, town  clerks,  moderators  and  tellers  when  taking  part  in 
the  conduct  of  elections."  A  moderator  is  primarily  the  pre- 
siding officer  at  a  town  meeting  called  for  the  transaction  of 
general  business,  and  his  duties  as  election  officer,  when  any  such 
duties  devolve  upon  him,  are  an  incidental  and  often  but  a  small 
part  of  that  which  he  is  to  do.  The  office  is  of  ancient  origin, 
and  its  incumbent  is  chosen  by  a  vote  of  the  people.  The 
extent  and  variety  of  his  duties  is  illustrated  by  the  fact  that  at 
the  meeting  in  question,  at  which  the  petitioner  presided,  the 
warrant  contained  twenty-five  distinct  articles,  embracing  a 
great  variety  of  subjects  affecting  the  interests  of  the  town.  It 
would  require  a  pretty  plain  statement  of  legislative  intention 
to  justify  us  in  holding  that  after  one  had  just  been  elected  to 
such  an  office  and  had  entered  upon  the  performance  of  its 
duties,  the  selectmen  could  remove  him  during  the  meeting, 
because  he  was  a  candidate  for  some  other  town  office.  Indeed, 
it  has  often  happened  that  one  whose  services  were  needed  as 
moderator  was  also  specially  qualified  and  for  that  reason 
generally  desired  for  some  other  important  town  office. 

The  petitioner  argues  with  much  force  that  the  section  first 
quoted  does  not  apply  to  meetings  of  towns  not  divided  into 
voting  precincts.  The  prohibition  is  against  acting  as  an  election 
officer  in  a  "voting  precinct,"  not  in  a  general  meeting  of  all 
the  inhabitants  of  a  town.  The  section  is  found  in  that  sub- 
division of  the  act  which  is  entitled  "Election  Officers,"  and 
which  treats  particularly  of  officers  appointed  under  that  name 
for  voting  precincts.  The  provisions  relating  to  elections  in 
towns  not  divided  into  precincts  appear  in  section  176  and  the 
sections  that  follow  it.  It  is  only  "a  person  appointed  an 
election  officer"  who  may  be  removed  if  he  becomes  a  candidate 
for  another  office.  These  words  do  not  fitly  describe  one  elected 
by  the  people  to  the  important  office  of  moderator.  That  the 
words  mean  a  person  who  becomes  an  election  officer  by  ap- 
pointment prior  to  the  beginning  of  the  election  is  implied  in 
the  requirement  that  if  a  candidate  for  an  office  he  shall  be 
removed,  in  most  cases  a  considerable  time  before  the  election, 


WHEELER  V.   CARTER.      SUP.  JUD.   CT.,    1902.  91 

and  always  at  some  time  before  the  election.  The  choice  of  a 
moderator  is  a  part  of  the  annual  town  election,  and  if  the 
election  is  considered  as  a  single  occasion,  he  could  not  be 
removed  from  that  office  before  the  election. 

The  petitioner's  counsel  has  cited  the  statutes  in  relation  to 
election  officers  and  voting  precincts,  including  St.  1884,  c.  299, 
sees.  3-8;  St.  1886,  c.  264,  sec.  8;  St.  1890,  c.  423,  sec.  78,  and 
St.  1893,  c.  417,  sec.  110,  and  from  the  course  of  legislation  he 
derives  an  argument  in  support  of  his  contention  that  the  words 
"voting  precincts"  in  the  section  before  us  do  not  apply  to  a 
town  not  divided  into  voting  precincts.  We  think  there  is  much 
force  in  this  argument,  but  we  do  not  find  it  necessary  to  decide 
whether  we  should  go  so  far  as  the  petitioner  does  in  this  con- 
tention. Whether  this  section  does  or  does  not  apply  to  moder- 
ators elected  by  the  people,  the  selectmen  had  no  power  to  re- 
move the  petitioner  from  the  office  of  moderator,  and  there  was 
no  illegality  in  the  petitioner's  action. 

It  is  contended  that  the  election  was  invalid  because  the 
article  in  the  warrant  under  which  the  town  acted  was  "to 
choose  all  necessary  town  officers  for  the  ensuing  year,"  while 
under  the  law  members  of  the  board  of  selectmen  were  to  be 
elected  for  three  years.  The  town  had  accepted  St.  1898, 
c.  548,  sec.  335.  An  article  in  a  warrant  for  a  town  meeting 
should  not  be  interpreted  narrowly.  To  choose  officers  for  the 
ensuing  year  was  to  choose  them  according  to  the  law  in  force 
in  that  town.  This  law  required  that  the  selectmen  chosen  for 
the  ensuing  year  should  be  elected  for  a  term  of  three  years. 
We  think  that  the  article  was  sufficient.  See  St.  1898,  c.  548, 
sec.  325. 

The  appointment  of  tellers  in  such  meetings  is  required  by 
the  St.  1898,  c.  548,  sec.  179,  under  which  the  selectmen  should 
make  an  appointment  at  least  five  days  before  the  election,  and 
presiding  officers  at  the  meeting  may  appoint  additional  tellers. 
The  selectmen  failed  to  appoint,  and  the  clerk,  while  presiding 
previous  to  the  election  of  the  moderator,  appointed 'two  tellers 
who  acted  throughout  the  meeting.  The  town  clerk  was  legally 
acting  as  presiding  officer.  St.  1898,  c.  548,  sec.  328%  We  think 
the  authority  to  appoint  additional  tellers  includes  a  right  to 
act,  if  there  has  been  a  failure  of  the  selectmen  to  appoint  any 
previously.  The  tellers  so  appointed  are  at  least  de  facto  officers. 
Attorney  General  v.  Crocker,  138  Mass.  214,  221.  This  neglect 
of  the  selectmen  and  the  consequent  irregularity  did  not  affect 


92  MASSACHUSETTS  ELECTION  CASES  —  1902. 

the  legality  of  the  election.     O'Connell  v.   Matthews,   177  Mass. 
518. 

The  fact  that  the  record  does  not  show  the  number  of  votes 
cast  for  the  different  candidates  does  not  render  the  election 
illegal.  If  these  things  ought  to  appear  of  record,  it  would  be 
within  the  power  of  the  town  clerk,  and  it  would  be  his  duty 
to  amend  the  record  and  state  the  facts.  Halleck  v.  Boylston, 
117  Mass.  469.  But  it  is  unnecessary  to  record  the  number  of 
votes  cast  for  the  respective  candidates  at  such  a  meeting.  The 
St.  1898,  c.  548,  sec.  373,  on  which  the  respondents  rely,  does 
not  apply  to  the  record  of  the  election  of  town  officers  in  a 
general  meeting  of  the  inhabitants  of  the  town. 

Many  of  the  requirements  of  the  law  in  regard  to  elections  in 
cities  and  towns  voting  in  precincts  are  inapplicable  to  elections 
in  general  town  meetings.  It  is  important  in  meetings  of  the 
latter  kind  that  officers  should  so  conduct  themselves  as  not  only 
to  prevent  interference  with  the  freedom  of  the  ballot  and  to 
secure  honesty  and  purity  in  elections,  but  also  to  furnish  no 
grounds  for  suspicion  of  dishonesty  or  partiality.  But  if  an 
election  is  conducted  according  to  the  rules  of  law,  the  court 
cannot  interfere  with  the  result  merely  because  voters  may  have 
been  influenced  to  vote  or  to  refrain  from  voting  by  the  presence 
of  some  of  the  candidates  near  the  ballot  box  in  an  open  town 
meeting. 

The  petitioner  having  been  legally  elected,  the  subsequent 
action  of  the  town  in  declaring  that  there  was  a  vacancy  in  his 
office  did  not  affect  his  rights. 

Peremptory  writ  of  mandamus  to  issue. 


PERRY  V.  HULL.      SUP.  JUD.   CT.,    1902. 


SUPREME   JUDICIAL   COURT. 

Charles  B.  Perry  et  al.  v.  Samuel  E.  Hull  et  al. 

(Reported  in  180  Mass.  547.) 

Worcester,  Jan.  6,  1902  —  Feb.  28,  1902.    Present,  Holmes,  C.J.,  Lathrop, 
Barker,  Hammond  and  Loring,  JJ. 

Mandamus.  —  Mandamus  will  not  lie  to  enforce  the  caucus  or  election  laws, 
the  remedy  for  a  violation  being  given  by  St.  1898,  c.  548,  sec.  417  (R.  L.,  c.  11, 
sec.  421). 

Petition  for  a  writ  of  mandamus  by  six  citizens  of  the  town 
of  Millbury  against  the  chairman  and  secretary  of  a  Republican 
caucus  of  that  town  and  five  other  persons  declared  at  the 
caucus  to  have  been  elected  the  Republican  town  committee  of 
Millbury,  praying  that  the  chairman  and  secretary  be  ordered 
to  count  the  votes  cast  for  the  petitioners  and  others,  and  to 
declare  the  seven  or  eight  having  the  highest  number  of  votes 
to  be  elected  members  of  the  committee,  filed  Oct.  12,  1901. 

The  petition  alleged  that  a  majority  of  the  voters  had  deter- 
mined to  elect  a  new  committee  and  had  prepared  a  ticket  with 
eight  names;  that  the  day  before  the  caucus  the  old  committee 
met  and  changed  the  number  of  the  committee  from  eight  to 
seven,  giving  no  notice  of  their  action;  that  at  the  caucus  the 
ballot  for  eight  was  thrown  out,  although  it  received  a  majority 
of  the  votes  cast,  and  the  committee's  ticket  of  seven  perpetuat- 
ing themselves  was  declared  elected. 

The  respondents  demurred  to  the  petition,  on  the  grounds, 
among  others,  that  the  writ  of  mandamus  would  not  lie  for  the 
matters  alleged,  and  that  an  adequate  and  exclusive  relief  was 
afforded  by  the  laws  of  the  Commonwealth  for  the  wrongs,  if 
any,  of  which  the  petitioners  complained. 

B.  W.  Potter  for  the  petitioners. 

A.  P.  Rugg  and  T.  H.  Sullivan  for  the  respondents. 

Barker,  J.  We  assume  that  all  the  allegations  of  the  petition 
are  true.  We  assume  further,  but  without  so  deciding,  that 
the  decision  of  the  chairman  and  secretary  of  the  caucus  may  be 
revised  by  the  courts  in  proper  proceedings.  But  the  demurrer 
was  rightly  sustaiced  because  mandamus  will  not  lie  where  the 


94  MASSACHUSETTS  ELECTION  CASES  —  1902. 

petitioners  have  another  remedy  by  bill  or  petition  given  by 
statute.  Hill  v.  McKim,  16  Mass.  100.  In  that  case  a  judge 
of  a  court  of  insolvency  having  refused  to  order  a  hearing  upon 
a  proposal  for  composition  it  was  held  that  the  proper  remedy 
was  by  bill  or  petition  under  Pub.  Sts.  c.  157,  sec.  15,  and  not 
by  mandamus.  The  remedy  of  the  present  petitioners  was  under 
St.  1898,  c.  548,  sec.  417.     See  R.  L.  c.  11,  sec.  421. 

Orders  sustaining  demurrer  and  dismissing  'petition  affirmed. 


BLACKMER  V.   HILDRETH.      SUP.  JUD.   CT.,   1902.  95 


SUPREME   JUDICIAL   COURT. 

Tina  H.  Blackmer  v.  Merrick  E.  Hildreth  and   Others. 

(Reported  in  181  Mass.  29.) 

Suffolk,  Jan.  10,  1902  —  March  1,  1902.    Present,  Holmes,  C.  J.,  Lathrop, 
Barker,  Hammond  and  Loring,  JJ. 

Election.  —  The  requirements  of  St.  1898,  c.  548,  sees.  141,  142,  145,  as  to  the 
time  of  filing  nomination  papers  and  the  certificates  thereon,  although  binding  on 
the  officers  whose  duty  it  is  to  prepare  and  pass  upon  the  official  ballot,  do  not 
invalidate  ballots  cast  for  a  candidate  nominated  by  papers  filed  too  late  and  not 
properly  certified. 

Petition,  filed  Aug.  13,  1901,  for  a  writ  of  mandamus  to  be 
issued  to  the  selectmen  of  Petersham  commanding  them  to 
receive  the  petitioner  as  one  of  their  board,  and  commanding 
Edwin  C.  Dexter  to  refrain  from  acting  as  a  member  of  that 
board. 

The  case  was  heard  by  Barker,  J.,  who  ruled  that  the  in- 
formalities in  the  nomination  papers  of  Edwin  C.  Dexter  would 
not  invalidate  his  election,  and  that  the  petitioner,  by  making 
no  protest  after  his  signing  the  certificate  on  the  nomination 
papers  on  May  7,  1901,  and  by  participation  in  the  meeting  at 
which  Dexter  was  elected,  and  by  acquiescence  in  its  results,  was 
precluded  from  maintaining  his  present  petition. 

The  justice  ordered  the  petition  dismissed;  and  the  petitioner 
alleged  exceptions. 

J.   W.  Corcoran  and  W.  B.  Sullitan  for  the  petitioner. 
J.  B.  Warner  and  A.  H.  Brooks  for  the  respondents. 

Hammond,  J.  St.  1898,  c.  548,  requires  that  a  nomination 
paper  in  the  case  of  an  election  like  this  shall  be  filed  as  early 
as  the  seventh  day  preceding  the  election  (sec.  145),  and  that 
at  the  time  it  is  filed  it  shall  have  thereon  the  certificate  of  the 
registrars  of  voters  as  to  the  number  of  signatures  which  are 
names  of  qualified  voters,  and  also  shall  have  annexed  to  it  an 
oath  made  by  one  of  the  signers  thereto  verifying  the  truth  of 


96  MASSACHUSETTS  ELECTION  CASES  —  1902. 

the  statements  therein  contained,  with  the  certificate  of  the 
person  before  whom  the  oath  is  taken  that  he  is  satisfied  that 
the  person  to  whom  the  oath  is  administered  is  the  person  signing 
the  paper.     Sees.  141,  142. 

In  the  case  before  us  the  nomination  paper  was  filed  two  days 
late,  and  a  certificate  of  the  registrars  was  placed  thereon  and 
the  oath  of  one  of  the  signers  of  the  paper  and  certificate  respect- 
ing it  were  annexed  thereto  after  the  paper  was  filed  but  not 
before  the  official  ballot  was  made  up.  One  of  the  questions  is 
whether  the  election  shall  be  declared  invalid  on  account  of  these 
irregularities. 

The  justice  found  as  a  fact  that  all  parties,  including  the  town 
clerk  and  the  registrars,  one  of  whom  was  the  petitioner,  acted 
without  fraud  and  in  good  faith.  Dexter's  name  was  placed 
upon  the  official  ballot,  and  he  received  at  the  election  a  majority 
of  the  votes. 

Under  our  system  of  elections  the  voter  receives  at  the  polls 
from  the  election  officers  an  official  ballot,  of  which  he  does  not 
know  and  is  not  expected  to  know  anything  except  what  appears 
upon  its  face;  and  as  a  rule  it  is  impossible,  as  in  this  case,  by 
an  inspection  of  the  ballot  to  ascertain  whether  or  not  there  has 
been  any  irregularity  in  the  preparation  of  it.  He  takes  this 
ballot,  sees  upon  it  the  names  of  the  candidates,  and,  having 
expressed  thereon  in  due  form  his  choice,  deposits  it  in  the 
ballot  box.  Thus  he  duly  expresses  his  will  upon  the  paper 
prepared  and  handed  to  him  by  the  officers  of  the  law  appointed 
for  that  purpose.  All  this  he  does  in  good  faith.  All  this  the 
voters  at  the  election  in  question  did  in  good  faith,  and  the 
result  was  that  Dexter  received  a  clear  majority  of  the  votes. 

It  is  contended,  however,  by  the  petitioner,  that  the  provi- 
sions of  the  election  law  above  recited  are  mandatory,  and  that 
as  a  necessary  result  the  election  of  Dexter  was  void.  On  the 
contrary,  the  respondents  contend  that  in  this  case  there  was  no 
such  non-compliance  with  these  provisions  as  to  render  the 
election  void. 

The  statute  in  question  deals  with  the  whole  subject  of 
elections,  from  the  qualifications  of  voters  to  the  final  ascer- 
tainment of  their  choice.  In  order  that  the  official  ballot  may 
be  properly  prepared,  it  provides  the  manner  in  which  caucus 
and  other  nomination  papers  shall  be  made  up,  prescribing  with 
considerable  minuteness  the  details,  and  it  fixes  the  time  within 
which  the  papers  shall  be  presented  for  the  ballot  as  well  as  the 
time  within  which  objections  to  any  such  paper  may  be  made. 


BLACKMER  V.  HILDRETH.      SUP.  JUD.   CT.,    1902.  97 

Sees.  139-146,  148-152.  It  further  provides  for  the  creation 
of  a  board  charged  with  the  duty  of  settling  all  disputed  ques- 
tions of  fact  arising  upon  such  objections,  and  "the  decision  of 
a  majority  of  the  members  thereof  shall  be  final."  Sees.  147, 
153.  It  further  provides  that  nomination  papers  filed  and  in 
apparent  conformity  with  law  shall  be  held  valid  unless  objec- 
tions are  seasonably  made  thereto.  Sec.  146.  In  the  case  of 
towns,  the  town  clerk,  having  before  him  the  undisputed  papers 
and  the  decision  of  the  proper  tribunal  upon  those  to  which 
objection  is  made,  prepares  the  official  ballot  in  accordance 
therewith,  and  this  is  the  ballot  which  the  voter  finds  waiting 
for  him  at  the  polls.  It  contains  the  officially  declared  result 
of  all  these  preliminary  proceedings,  but,  as  we  have  said 
before,  there  is  nothing  by  which  the  voter  can  judge  whether 
or  not  all  these  proceedings  have  been  regular.  As  stated  by 
Andrews,  C.J.,  in  People  v.  Wood,  148  N.  Y.  142,  147;  "The 
object  of  elections  is  to  ascertain  the  popular  will  and  not  to 
thwart  it.  The  object  of  election  laws  is  to  secure  the  rights 
of  duly  qualified  electors  and  not  to  defeat  them."  This  must 
be  borne  in  mind  in  the  construction  of  such  statutes,  and  the 
presumption  is  that  they  are  enacted  to  prevent  fraud  and  to 
secure  freedom  of  choice,  and  not  by  technical  obstructions  to 
make  the  right  of  voting  insecure.  The  provisions  above  recited 
with  reference  to  the  preparation  of  the  ballot  are  plainly 
limited  and  confined  to  that  purpose.  They  are  binding  upon 
the  officers  for  whose  guidance  and  direction  they  are  needed. 
If  it  be  seasonably  objected  to  a  nomination  paper  that  it  was 
not  filed  within  the  time  required  by  section  145,  or  that  the 
provisions  of  sections  141  and  142  have  not  been  complied  with, 
it  is  the  duty  of  the  proper  board  to  inquire  into  and  settle  the 
question,  and  to  sustain  the  objection,  if  found  to  be  true,  and 
reject  the  paper.  So  far  as  respects  their  decision  these  pro- 
visions are  mandatory.  When  the  decision  is  made  it  is  final, 
and  a  ballot  made  up  in  accordance  therewith  is  not  thereby 
made  illegal.  And  in  the  same  way  the  action  of  the  town 
clerk  at  least  in  the  absence  of  fraud  and  corruption,  as  to 
the  papers  to  which  no  objection  is  made,  must  be  regarded  as 
final  so  far  as  respects  the  ballot  which  he  prepares. 

But  with  the  preparation  of  the  ballot  the  influence  of  these 
provisions  ends.  If  there  be  irregularities  like  those  in  this  case 
they  do  not  accompany  the  ballot  and  taint  it  in  the  hands  of 
the  voter.  This  view  of  the  statute  gives  due  weight  and  scope 
to  the  provisions  in  question,  and  preserves  the  sanctity  of  the 


98  MASSACHUSETTS  ELECTION  CASES  —  1902. 

right  of  suffrage  and  its  free  and  honest  exercise.  To  hold 
otherwise  would  be  to  lose  sight  of  the  purpose  for  which  these 
provisions  were  made,  namely,  to  provide  the  method  and 
time  for  the  preparation  of  the  ballot,  and  would  subject  our 
elections  to  intolerable  and  perplexing  technicalities  in  no  way- 
material  to  the  substantial  merits  of  the  controversy  or  to  the 
freedom  and  result  of  the  action  of  the  voters.  Its  natural 
tendency  would  be  to  thwart  rather  than  to  secure  a  true  ex- 
pression of  the  popular  will. 

We  are  aware  that  the  courts  of  England  and  Australia  are 
inclined  to  extend  the  operation  of  provisions  similar  to  those  in 
question  further  than  is  done  in  this  case,  but  an  examination  of 
the  English  statute  would  seem  to  show  that  it  expressly  reserves 
to  the  courts  a  supervision  over  some  of  the  decisions  of  the 
officers  respecting  the  preparation  of  the  ballots,  upon  a  petition 
questioning  the  election  after  it  has  taken  place.  St.  38  and  39 
Vict.  c.  40,  sec.  1;  Regina  v.  Parkinson,  L.  R.  3  Q.  B.  11; 
Mather  v.  Brown,  L.  R.  1  C.  P.  D.  596;  Howes  v.  Turner,  L.  R. 
1  C.  P.  D.  670;  Monks  v.  Jackson,  L.  R.  1  C.  P.  D.  683; 
Regina  v.  Miller,  1  Australian  Jur.  156. 

But  whether  that  be  so  or  not,  we  are  not  inclined  to  adopt 
a  construction  which  is  so  manifestly  opposed  to  the  general 
spirit  of  our  laws  and  the  freedom  of  our  elections  as  that  con- 
tended for  by  the  plaintiff. 

For  some  decisions  in  other  States  in  accordance  with  the 
views  herein  expressed,  see  People  v.  Wood,  ubi  supra,  Stackpole 
v.  Hallahan,  16  Mont.  40,  and  the  cases  therein  cited,  overruling 
in  substance  the  previous  case  of  Price  v.  Lush,  10  Mont.  61. 

The  ruling  that  the  informalities  in  the  nomination  paper  of 
the  respondent  Dexter  did  not  invalidate  the  election  was  correct. 
It  becomes  unnecessary  to  consider  the  other  grounds  of  defence. 

Exceptions  overruled. 


COMMONWEALTH  V.  KOGERS.      SUP.  JUD.   CT.,   1902.  99 


SUPREME    JUDICIAL    COURT. 

Commonwealth  v.  John  Rogers  and  Others. 

(Reported  in  181  Mass.  184.) 

Suffolk,  March  4,  1902  —  April  2,  1902.    Present,  Holmes,  C.J.,  Knowlton, 
Morton,  Barker  and  Loring,  JJ. 

Constitutional  Law.  —  Those  provisions  of  the  election  act,  St.  1898,  c.  548, 
which  regulate  caucuses  and  voting  at  them  are  constitutional. 

Same.  —  The  provision  of  St.  1898,  c.  548,  sec.  91,  that  no  person  having  voted 
in  the  caucus  of  one  political  party  shall  be  entitled  to  vote  or  take  part  in  the 
caucus  of  another  political  party  within  the  ensuing  twelve  months,  is  valid. 

Same.  —  St.  1898,  c.  548,  sec.  92,  requiring  voting  lists  to  be  used  as  check  lists 
in  balloting  at  caucuses,  is  valid. 

Pleading.  —  A  count  for  conspiracy  to  procure  illegal  voting  and  a  count  for  aid- 
ing and  abetting  illegal  voting  are  for  offences  similar  in  their  nature,  mode  of  trial 
and  punishment,  and  may  be  joined  in  one  indictment  at  common  law. 

Indictment.  —  On  an  indictment  for  a  conspiracy  to  procure  persons  to  vote  at 
a  caucus  who  were  not  entitled  to  vote  there,  the  conspiracy  might  be  completed 
before  any  of  the  persons  to  be  procured  had  been  agreed  upon,  and  the  particular 
nature  of  the  disqualification  is  not  material  to  the  offence  and  need  not  be  alleged 
in  the  indictment. 

Same.  —  An  indictment,  for  conspiring  to  procure  persons  to  vote  at  a  certain 
caucus  who  are  not  entitled  to  vote  there,  is  not  bad  because  under  its  charges  the 
conspiracy  might  be  to  procure  votes  which  were  illegal  for  different  reasons  under 
St.  1898,  c.  548,  sees.  377,  378,  and  to  abet  contrary  to  sec.  390  of  that  statute,  the 
offences  punished  under  these  sections  being  different,  since  the  conspiracy  alleged 
is  one,  and  properly  might  be  alleged  to  intend  them  all. 

Same.  —  Under  St.  1899,  c.  409,  sec.  10,  an  indictment  for  conspiring  to  procure 
persons  to  vote  illegally  at  a  certain  caucus  need  not  state  the  place  of  the  offence. 

Same.  —  On  the  trial  of  an  indictment  for  conspiracy  to  procure  persons  to  vote 
illegally  at  a  caucus,  there  is  no  variance  if  it  appears  that  when  the  conspiracy  was 
formed  the  conspirators  did  not  know  any  of  the  persons  named  in  the  indictment 
as  the  persons  to  be  procured,  and  that  one  of  them  was  not  spoken  to  until  12 
o'clock  on  the  day  of  the  caucus  when  all  the  plans  were  complete.  In  such  a  case 
the  fact  that  the  conspiracy  is  indictable  in  its  initial  stages  does  not  prevent  its 
being  indicted  in  the  shape  which  it  ultimately  assumes. 

Same.  —  An  indictment  for  aiding  and  abetting  illegal  voting  at  a  caucus  is  none 
the  less  sustained  because  it  appears  that  there  were  informalities  at  the  caucus,  if 
they  did  not  make  the  vote  of  the  caucus  void. 

Elections.  —  If  a  caucus  is  called  for  a  certain  hour,  and,  it  being  known  that  the 
regularly  elected  warden  will  be  absent,  a  temporary  warden  is  elected  a  few  minutes 
before  the  hour  named  to  fill  the  vacancy  and  when  the  caucus  opens,  and  thereafter 
acts  as  warden,  semble,  that  the  election  of  the  warden  is  good  under  St.  1898, 
c.  548,  sec.  129,  giving  the  power  to  fill  vacancies  "at  a  caucus."  At  any  rate,  there 
is  a  warden  dc  facto,  and  the  votes  cast  at  the  caucus  will  not  be  affected  by  the 
irregularity. 

Evidence.  —  At  the  trial  of  an  indictment  for  a  conspiracy  to  procure  persons  to 
vote  illegally  at  a  certain  caucus,  an  exception  was  taken  to  a  refusal  to  rule  that 
no  unfavorable  inference  should  be  drawn  against  one  of  the  defendants  who  acted 
as  de  facto  warden  at  the  caucus,  because  he  delayed  tor  half  an  hour  in  opening 


100  MASSACHUSETTS  ELECTION  CASES  —  1902. 

the  caucus,  if  that  delay  was  on  account  oi  the  enclosures  or  pens  outside  the  guard 
rail.  There  was  independent  evidence  that  the  delay  was  for  the  purpose  of  facili- 
tating the  carrying  off  of  certain  ballots  and  giving  time  to  take  them  to  the  place 
where  the  fraudulent  voters  were  assembled.  Held,  that  the  ruling  rightly  was 
refused. 

Same.  —  At  the  trial  of  an  indictment  for  a  conspiracy  to  procure  persons  to 
vote  illegally  at  a  certain  caucus,  the  presiding  judge,  as  the  ground  for  admitting 
the  declarations  of  one  defendant  as  evidence  against  the  others,  stated  his  ruling 
that  there  was  sufficient  evidence  of  a  conspiracy  against  all  the  defendants.  Held, 
that  the  ruling  was  right  and  the  statement  of  it  proper.  When  a  preliminary 
finding  of  fact  on  the  part  of  the  judge  is  necessary  for  such  a  purpose,  there  is  no 
duty  to  conceal  it  from  the  jury. 

Same.  —  On  a  trial  for  conspiracy,  declarations  of  the  several  defendants,  admis- 
sible against  themselves  but  not  against  the  others,  may  be  admitted,  the  jury 
being  cautioned  that  statements  made  after  the  conspiracy  had  been  carried  out 
are  admissible  only  against  the  party  making  them. 

Same.  —  At  the  trial  of  an  indictment  for  a  conspiracy  to  procure  persons  to 
vote  illegally  at  a  certain  caucus,  evidence  that  fraudulent  voters  were  spoken  to 
by  one  of  the  conspirators  before  all  of  them  had  come  into  the  scheme  is  admis- 
sible, in  connection  with  proof  that  the  others  did  come  in  and  by  implication 
adopted  the  act,  and  because  the  usual  way  of  proving  a  conspiracy  is  by  showing 
a  series  of  acts  on  the  part  of  the  several  defendants  all  converging  to  one  point. 

Same.  —  On  a  trial  for  conspiracy  the  weight  of  the  testimony  of  fellow  con- 
spirators properly  is  left  to  the  jury. 

Evidence.  —  At  the  trial  of  an  indictment  for  a  conspiracy  to  procure  persons  to 
vote  illegally  at  a  certain  caucus,  it  was  held  that  there  was  sufficient  evidence  to 
go  to  the  jury  of  the  guilt  of  one  of  the  defendants,  who  was  present  at  the  prelim- 
inary meetings,  which  were  held  in  his  house,  and  who  contributed  money  toward 
the  illegal  scheme  and  helped  at  the  time  of  the  caucus. 

Holmes,  C.J.  This  is  an  indictment  in  ten  counts  charging 
the  defendants  with  conspiring  to  procure  certain  persons  to 
vote  at  a  republican  caucus  who  were  not  entitled  to  vote  there, 
and  with  aiding  and  abetting  certain  persons  not  entitled  to 
vote  in  illegally  voting  at  the  same  caucus.  Probably  in  con- 
sequence of  the  number  of  counsel  engaged  scarcely  a  step  was 
taken  in  the  case  without  objection,  and  we  shall  not  feel  called 
upon  to  discuss  each  of  the  innumerable  exceptions  at  length  or 
to  go  much  beyond  the  arguments  addressed  to  us. 

A  motion  to  quash  was  made  on  behalf  of  the  defendants 
Winsloe,  Newmarch  and  Lord,  and  another  on  behalf  of  the 
defendant  Rogers.  The  former  raises  the  question  of  the  con- 
stitutionality of  those  parts  of  the  election  act,  St.  1898,  c.  548, 
which  regulate  caucuses  and  voting  at  them.  The  right  of  the 
Legislature  to  pass  laws  which  provide  "easy  and  reasonable 
mode  of  exercising  the  constitutional  right,"  and  which  are 
"calculated  to  prevent  error  and  fraud,  to  secure  order  and 
regularity  in  the  conduct  of  elections,  and  thereby  give  more 
security  to  the  right  itself,"  is  settled.  Capen  v.  Foster,  12  Pick. 
485,  490;   Kinneen  v.  Wells,  144  Mass.  497;    Jaquith  v.  Wellesley, 


COMMONWEALTH  V.   ROGERS.      SUP.   JUD.   CT.,    1902.  101 

171  Mass.  138,  143.  Here,  as  elsewhere  (it  might  be  said 
especially  in  matters  of  constitutional  law  were  the  fact  not 
universal),  it  is  vain  to  point  out  that  the  difference  upon  which 
a  legal  distinction  is  based  —  here  the  difference  between  seem- 
ingly useful  or  harmless  legislation  and  a  clearly  void  restriction 
—  is  one  of  degree,  and  to  ask  where  you  are  going  to  draw  the 
line,  as  is  done  by  the  defendants.  Some  legislation  is  per- 
missible and  necessary.  A  line  between  cases  differing  only  in 
degree  is  worked  out  by  the  gradual  approach  of  the  decisions 
grouped  about  the  opposite  poles.  Objections,  to  deserve  con- 
sideration, must  be  specific. 

The  regulations  in  question  provide  and  govern  merely  a 
means  by '  which  political  parties  may  get  the  names  of  their 
candidates  printed  upon  the  official  ballot,  and  they  must  govern 
if  they  are  to  provide  them.  The  statute  gives  another  means 
by  nomination  papers.  Sec.  140.  It  does  not  prevent  any 
one  from  voting  for  any  other  persons  than  those  whose  names 
are  printed  on  the  ballot  or  prevent  people  from  meeting  without 
regard  to  the  statute,  concerting  their  action  and  preparing 
pasters  to  be  used  upon  the  ballot.  It  does  not  interfere  at  all 
with  the  final  vote  for  State  officers,  representatives  and  senators, 
which  it  is  the  most  obvious  purpose  of  the  Constitution  to  pro- 
tect. See  Cole  v.  Tucker,  164  Mass.  486,  487.  We  may  assume 
for  purposes  of  decision  that  legislation  for  the  limited  purposes 
of  the  sections  in  question  is  subject  to  the  protection  of  the 
right  to  vote  secured  by  the  Constitution.  But  if  it  is,  which 
we  do  not  decide,  the  remoteness  of  what  it  affects  from  the 
final  vote  is  to  be  borne  in  mind  when  we  have  to  decide  whether 
it  only  embodies  reasonable  precautions  or  trenches  upon  polit- 
ical rights.  It  would  be  a  strange  inversion  to  say  that  no 
laws  can  be  passed  upon  the  mode  of  voting  at  a  preliminary 
meeting  held  only  for  the  purpose  of  getting  names  printed 
upon  an  official  ballot  when  laws  can  be  passed  affecting  the 
final  vote.  The  Legislature  has  a  right  to  attach  reasonable 
conditions  to  the  advantage,  if  it  has  a  right  to  grant  the  ad- 
vantage. Whether  the  defendants  mean  to  deny  that  right  or 
to  contend  that  if  any  names  are  printed  those  of  all  possible 
candidates  should  be,  is  not  very  clear.  We  see  no  reason  to 
doubt  that  the  provisions  for  printing  names  presented  by  a 
fixed  minimum  of  voters  in  the  specified  way  is  proper.  Indeed 
that  hardly  is  an  open  question.  It  is  settled  that  the  rights  of 
others  are  protected  by  the  provision  for  blank  spaces.  Cols  v. 
Tucker,  164  Mass.  486,  488.     Practically  it  is  settled  that  there 


102  MASSACHUSETTS  ELECTION  CASES  —  1902. 

is  no  ground  of  complaint  in  the  obviously  necessary  restrictions 
upon  the  number  of  names  to  be  printed.  Miner  v.  Olin,  159 
Mass.  487.  The  suggestion  that  it  is  a  hardship  upon  a  voter 
who  can  write  nothing  but  his  own  name  is  really  an  objection 
to  the  ballot  in  general,  and,  with  the  objection  that  the  statute 
is  class  legislation,  is  disposed  of  by  the  cases  cited.  See  further 
BeWalt  v.  Bartley,  146  Penn.  St.  529;  Ransom  v.  Black,  25 
Vroom,  446. 

One  specific  objection  urged  is  that  by  section  91  no  person 
having  voted  in  the  caucus  of  one  political  party  shall  be  en- 
titled to  vote  or  take  part  in  the  caucus  of  another  political 
party  within  the  ensuing  twelve  months.  It  seems  to  us  im- 
possible to  say  as  matter  of  law  that  this  is  not  a  reasonable 
precaution  against  the  fraudulent  intrusion  of  members  of  a 
different  party  for  sinister  purposes. 

It  is  objected,  further,  that  an  attempt  is  made  to  require 
greater  qualifications  for  voting  than  are  required  by  the  Con- 
stitution, by  the  provisions  for  the  use  of  the  voting  lists  as 
check  lists,  and  the  denial  of  the  right  to  vote  to  those  whose 
names  do  not  appear  upon  the  lists.  It  is  suggested  that  the 
registration  under  sections  36-38  may  be  closed  twenty  days 
before  the  caucus,  so  that  persons  who  become  qualified  in  the 
interim  are  not  allowed  to  vote.  For  the  purposes  of  a  pre- 
liminary meeting,  this  again  does  not  seem  to  us  an  unreasonable 
precaution,  and  we  cannot  say  as  matter  of  law  that  the  time 
allowed  is  unreasonable.  The  actual  interim  presumably  will  be 
much  less,  under  the  requirement  that  the  registrars  hold  at  least 
one .  session  on  or  before  the  Saturday  last  preceding  the  first 
caucus  preceding  the  annual  State  election.  The  provision  in 
section  50  for  registering  minors  who  will  reach  full  age  before 
the  election  day  must  not  be  forgotten. 

The  statute  is  objected  to  as  requiring  illegal  taxation  because 
the  city  or  town  must  bear  the  expense  of  the  caucuses,  and  thus 
taxpayers  are  made  to  contribute  to  the  support  of  a  party  or 
parties  which  they  do  not  approve.  The  disapproval  of  a 
minority  does  not  exempt  them  from  bearing  their  share  of 
public  burdens  while  they  continue  to  live  in  a  State  which 
they  are  free  to  leave.  The  expense,  considered  as  a  whole,  is 
for  the  purpose  of  making  it  easier  and  more  certain  that  the 
community  shall  elect  the  public  officers  whom  it  wants.  This  is 
not  the  less  a  public  purpose  that  a  part  of  the  expenditure 
necessarily    is    for    the    separate    convenience    of    the    separate 


COMMONWEALTH  V.  EOGERS.      SUP.  JUD.  CT.,   1902.  103 

groups  out  of  whose  action  emerges  the  expression  of  the  public 
will. 

The  motions  to  quash  set  up  that  the  indictments  are  bad  on 
other  grounds  beside  the  supposed  invalidity  of  the  statute. 
It  is  said  that  there  is  a  misjoinder  of  counts.  But  conspiracy 
to  procure  illegal  voting  and  aiding  and  abetting  in  illegal 
voting  are  "  similar  in  their  nature,  mode  of  trial  and  punish- 
ment." Commonwealth  v.  Leach,  156  Mass.  99,  101;  Pettes  v. 
Commonwealth,  126  Mass.  242,  245.  The  latter  is  punished  by 
imprisonment  in  jail  not  exceeding  one  year,  St.  1898,  c.  548, 
sec.  390;  the  former  conformably  to  the  common  usage  and 
practice  in  the  State,  Pub.  Sts.  c.  215,  sec.  1  (R.  L.  c.  220, 
sec.  4).  In  either  case  imprisonment  might  be  in  the  house  of 
correction  instead  of  in  the  jail.  Pub.  Sts.  c.  215,  sec.  3.  (R.  L. 
c.  220,  sec.  5.)  It  was  not  necessary  to  aver  that  the  different 
counts  were  different  descriptions  of  the  same  offence.  The 
offences  intended  to  be  charged  were  different,  and  the  joinder 
was  permissible  at  common  law  and  did  not  depend  upon  Pub. 
Sts.  c.  213,  sec.  18  (R.  L.  c.  218,  sec.  45).  Commonwealth  v. 
Ismahl,  134  Mass.  201.  We  see  no  injustice  and  no  embarrass- 
ment in  the  conduct  of  their  case  of  which  the  defendants  can 
complain. 

It  is  said  that  the  first  count  is  bad  because  it  does  not  show 
how  the  persons  whom  the  defendants  conspired  to  procure  to 
vote  were  not  entitled  to  vote.  The  allegation  embraces  persons 
unknown  so  that  the  requirement  is  impossible,  and  this  il- 
lustrates the  fact  that  such  a  conspiracy  might  be  completed 
before  any  of  the  persons  to  be  procured  had  been  agreed  upon. 
But  it  follows  from  that  fact  that  the  particular  nature  of  the 
disqualification  is  in  no  way  material  to  the  offence.  Therefore 
it  seems  to  us  unnecessary  to  the  defence  to  require  it  to  be 
alleged.  In  United  States  v.  Cruikshank,  92  U.  S.  542,  the 
object  of  the  conspiracy  was  not  stated  with  reasonable  cer- 
tainty. Perhaps  it  is  only  another  form  of  words  for  the  same 
thought  to  say  that  the  mode  of  disqualification  is  a  fact  one 
degree  more  remote  than  the  principal  constituent  elements  of 
the  crime,  and  that  for  that  reason  the  disqualification  may  be 
alleged  in  general  terms.  See  cases  cited  in  May  v.  Wood,  172 
Mass.  11,  15;  State  v.  Marshall,  45  N.  H.  281,  285,  286.  There 
is  no  doubt  that  the  count  set  forth  a  crime  at  common  law. 
See  Commonwealth  v.  Sllsbee,  9  Mass.  417;  Commonwealth  v. 
Hoxey,   16  Mass.   385;    Commonwealth  v.   McHale,  97  Penn.   St. 


104  MASSACHUSETTS  ELECTION  CASES  —  1902. 

397,  408;  Commonwealth  v.  Waterman,  122  Mass.  43,  57.  See 
further  St.  1898,  c.  548,  sec.  377. 

It  may  be  worth  remarking  that  Commonwealth  v.  Boynton, 
cited  in  Commonwealth  v.  Hunt,  Thach.  Crim.  Cas.  609,  640, 
and  in  Commonwealth  v.  Waterman,  is  not  an  authority,  as  it 
appears  from  the  records  that  the  allegation  of  conspiracy  was 
merely  inducement  to  an  allegation  that  the  goods  actually 
were  obtained  by  the  false  pretences.  Records  of  Supreme 
Judicial  Court  (Vol.  3),  1803,  fol.  82,  83a. 

A  similar  objection  is  made  to  the  other  counts  for  abetting  in 
voting  persons  not  entitled  to  vote.  This  is  urged  under  the 
fifth  reason  of  Rogers'  motion  to  quash,  viz.,  that  the  second 
count  alleges  no  offence  and  that  the  other  counts  are  defective, 
informal  and  insufficient,  and  do  not  set  forth  with  legal  pre- 
cision any  offence  known  to  the  law;  and  under  similar  reasons 
in  the  other  motion.  The  defect,  if  there  is  one,  is  formal  and 
should  have  been  assigned  specifically.  Pub.  Sts.  c.  214,  sec.  25. 
Commonwealth  v.  Donovan,  170  Mass.  228,  235.  If  we  were  to  con- 
sider the  objection,  we  should  be  inclined  to  regard  the  allegation 
as  sufficient.  In  addition  to  what  has  been  said  already,  the 
counts  follow  the  language  of  the  statute.  St.  1898,  c.  548, 
sec.  390.  Commonwealth  v.  Connelly,  163  Mass.  539,  541.  The 
allegation  is  a  mere  negative.  A  few  persons  are  entitled  to  vote 
at  a  given  place  and  time.  The  rest  of  the  world  is  not.  It 
seems  an  excess  of  formality  to  require  a  more  detailed  denial 
of  the  specific  marks  which  constitute  a  qualification  to  vote. 
They  all  are  denied  by  the  phrase  "not  entitled  to  vote."  How- 
ever it  may  be  in  an  indictment  for  unlawful  voting  (and  the 
reasoning  in  People  v.  Neil,  91  Cal.  465,  469,  State  v.  Moore, 
3  Dutcher,  105,  110,  and  the  old  precedents  on  the  game  laws 
there  cited,  does  not  seem  to  us  convincing),  we  are  not  prepared 
to  make  so  strict  a  requirement  in  an  indictment  for  abetting, 
notwithstanding  the  decision  in  State  v.  Tweed,  3  Dutcher,  111. 
See  Commonwealth  v.  Shaw,  7  Met.  52;  State  v.  Marshall,  45 
N.  H.  281;  2  Whart.  Prec.  Ind.  (4th  ed.)  1019;  State  v.  Doug- 
lass, 7  Iowa,  413.  If  necessary,  we  might  refer  also  to  St.  1899, 
c.  409,  sees.  5,  6,  13,  27;  Commonwealth  v.  Dill,  160  Mass.  536, 
537. 

It  is  argued  that  the  first  count  is  bad  because  it  charges  or 
may  charge  conspiracy  to  procure  votes  which  are  illegal  under 
either  section  377  or  section  378,  and  to  abet  contrary  to  section 
390.  The  offences  punished  in  these  sections  are  different,  but 
the  conspiracy  alleged  is  one,  and  properly  might  be  alleged  to 


COMMONWEALTH   V.   ROGERS.      SUP.   JUD.   CT.,    1902.  105 

intend  them  all.  Commonwealth  v.  O'Brien,  12  Cush.  84,  92. 
Compare  Commonwealth  v.  Mpody,  143  Mass.  177.  It  is  punish- 
able to  conspire  to  procure  any  kind  of  unlawful  voting,  whether 
it  be  the  voting  of  an  unregistered  voter  or  the  voting  of  one 
who  had  voted  in  the  caucus  of  another  party  within  a  year. 

The  only  further  observation  necessary  to  be  made  concerning 
the  motion  to  quash  or  the  indictment  is  that  by  reason  of  St. 
1899,  c.  409,  sec.  10,  it  was  not  necessary  to  state  the  place  of 
the  offence,  and  that  this  disposes  of  what  otherwise  would  be 
the  most  serious  trouble  with  the  first  count. 

The  next  proposition  argued  for  the  defendants  is  that  the 
first  count  was  not  proved  as  laid.  This  conclusion  is  reached 
by  an  odd  perversion  of  the  principle  that  the  offence  of  con- 
spiracy is  committed  as  soon  as  the  combination  or  agreement 
is  made.  It  is  said  that  the  defendants  had  made  their  plot 
before  they  knew  any  of  the  persons  named  in  the  first  count 
as  the  persons  to  be  procured,  and  more  especially  that  one  of 
those  persons  was  not  spoken  to  until  12  o'clock  on  the  day  of 
the  caucus,  when  all  the  plans  were  complete.  No  doubt  a 
conspiracy  was  entered  into  before  it  was  decided  who  were  the 
men  to  be  used.  But  that  conspiracy  was  enlarged  with  each 
new  item  that  entered  into  the  plan  while  it  still  was  on  foot, 
just  as  it  might  be  enlarged  in  the  number  of  its  members,  and, 
when  the  men  gathered  in  a  certain  room,  the  conspiracy  became 
a  conspiracy  to  procure  those  men  to  vote.  The  fact  that  it  was 
indictable  in  its  more  meager  and  unfledged  form  did  not  prevent 
its  being  indicted  in  the  shape  which  it  ultimately  assumed. 
We  may  admit  for  the  purposes  of  decision  that,  under  Common- 
wealth v.  Harley,  7  Met.  506,  and  Commonwealth  v.  Kellogg,  7 
Cush.  473,  it  was  necessary  to  prove  the  names  laid  in  the 
count.  See  Commonwealth  v.  Meserve,  154  Mass.  64,  73.  But 
if  the  men  were  identified  before  the  plot  was  over,  of  course 
it  no  more  matters  that  they  were  not  identified  by  name  than 
it  matters  in  the  proof  of  an  indictment  for  an  attempt  to  kill  a 
certain  man  that  the  defendant  did  not  know  his  name  when  he 
shot  at  him. 

It  is  next  argued  that  the  caucus  was  not  legally  held,  as  the 
jury  were  instructed  that  it  must  be  proved  to  have  been  in 
order  to  sustain  the  counts  for  abetting.  This  is  maintained  in 
the  first  place  because  the  warden  was  elected  a  few  minutes 
before  4  on  the  ground  of  a  temporary  vacancy,  whereas  the 
caucus  was  called  for  4  o'clock,  and,  by  section  129,  the  power 
to  fill  vacancies  is  given  only  "at  a  caucus."    It  was  known  that 


106  MASSACHUSETTS  ELECTION  CASES  —  1902. 

the  regularly  elected  warden  would  be  absent,  so  that  it  would 
be  a  strong  thing  to  say  that  the  election  was  not  sufficient 
when  the  caucus  opened.  But  at  least  there  was  a  warden  de 
facto  and  a  meeting  at  which  votes  were  cast  effectively.  See 
Commonwealth  v.  Sullivan,  165  Mass.  183,  185;  Rounds  v.  Smart, 
71  Maine,  380,  387;  Paine,  Elections,  c.  17.  Voters  are  not  to 
be  disfranchised  without  clear  words.  O'Connell  v.  Mathews, 
177  Mass.  518,  521.  Bowers  v.  Smith,  111  Mo.  45,  55,  56. 
Paine,  Elections,  314,  sec.  368.  But  if  the  meeting  was  effective 
for  the  purpose  for  which  it  was  called,  fraudulent  voting  would 
accomplish  the  harm  which  the  law  seeks  to  prevent,  and  it 
would  be  absurd  to  allow  it  to  go  unpunished  on  the  ground  of 
informalities  which  did  not  make  the  vote  of  the  caucus  void. 
The  same  consideration  makes  the  presence  of  pens  outside  the 
guard  rails  and  of  unauthorized  persons  within  them,  the  possible 
absence  of  sufficient  booths  and  the  delegation  of  the  duty  of 
arranging  two  or  more  lines  of  voters,  section  105,  immaterial  to 
the  case.  Bowers  v.  Smith,  111  Mo.  45;  Moyer  v.  Van  De 
Vanter,  12  Wash.  377,  385;  Simons  v.  People,  119  111.  617; 
Drogheda  Election  Petition,  9  Ir.  L.  T.  R.  161. 

An  exception  was  taken  to  a  refusal  to  rule  that  no  unfavorable 
inference  should  be  drawn  against  Lord,  the  de  facto  warden,  one 
of  the  defendants,  because  he  delayed  for  half  an  hour  in  opening 
the  caucus,  if  that  delay  was  on  account  of  the  enclosures  or 
pens  outside  the  guard  rail.  There  was  independent  evidence 
that  Lord  was  in  the  conspiracy,  and  that  it  had  been  suggested 
that  he  should  facilitate  the  carrying  off  of  the  ballots,  which 
was  one  part  of  the  scheme.  This  he  could  not  do  until  the 
ballots  were  delivered  to  him  at  the  caucus.  Sec.  120.  After 
refusing  to  open  the  caucus  for  some  time,  he  did  so  at  once, 
at  about  half  past  4,  on  a  whisper  from  the  defendant  Winsloe. 
There  was  a  fair  argument  that  he  agreed  to  the  suggested  plan, 
and  made  the  delay  in  order  to  give  time  for  the  ballots  to  be 
carried  over  to  the  place  where  the  fraudulent  voters  were 
assembled.  The  ballots  arrived  there  about  5.  Further  answer 
to  this  exception  seems  unnecessary. 

Exceptions  were  taken  on  the  ground  that  the  presiding  judge 
charged  upon  the  facts.  We  deem  it  unnecessary  to  discuss  the 
charge.  We  are  of  opinion  that  it  was  perfectly  fair  and  sedu- 
lously avoided  expressing  the  opinion  of  the  judge. 

A  few  general  observations  will  dispose  of  the  argument  in 
support  of  the  many  exceptions  to  evidence.  The  presiding  judge 
rightly  ruled  that  there  was  sufficient  evidence  of  a  conspiracy 


COMMONWEALTH  V.  ROGERS.      SUP.  JUD.  CT.,   1902.  107 

against  all  the  defendants.  It  was  proper  to  make  the  statement 
as  the  ground  for  admitting  declarations  of  one  as  evidence 
against  the  others.  When  a  preliminary  finding  of  fact  is  neces- 
sary on  the  part  of  the  judge  for  such  a  purpose  there  is  no  duty 
to  conceal  it  from  the  jury.  Commonwealth  v.  Brown,  14  Gray, 
419,  425,  432;  Commonwealth  v.  Scott,  123  Mass.  222,  235.  The 
admissibility  of  the  evidence  as  against  the  others,  was  made  by 
the  charge  ultimately  dependent  upon  the  finding  of  a  conspiracy 
by  the  jury,  and  they  were  cautioned  to  use  their  own  judgment. 
Declarations  of  the  several  defendants  properly  were  admitted  as 
against  themselves  independent  of  this  ruling  and  before  it. 
Commonwealth  v.  Ingraham,  7  Gray,  46,  47;  Commonwealth  v. 
Hunton,  168  Mass.  130,  132.  So  far  as  they  might  be  evidence 
against  the  others  after  a  conspiracy  was  established  aliunde, 
there  was  no  necessary  order  of  proof.  Commonwealth  v.  Smith, 
163  Mass.  411,  418;  Commonwealth  v.  Waterman,  122  Mass. 
43,  59;  Reyina  v.  Britiain,  3  Cox  C.  C.  76,  77.  It  was  proper, 
too,  to  call  for  what  was  said  by  the  defendants  after  as  well 
as  before  the  conspiracy  had  been  carried  out,  and  then,  if 
irrelevant  matters  were  mentioned  in  the  answer  without  special 
objections,  to  order  those  matters  not  to  be  considered,  as  the 
judge  would  have  done  in  this  case  but  for  the  objection  of  the 
defendants.  He  cautioned  the  jury  that  after  the  conspiracy 
had  accomplished  its  end  declarations  were  admissible  only 
against  the  party  making  them.  The  jury  were  cautioned  in 
every  proper  way  not  to  consider  evidence  admitted  only  as 
against  one  when  they  were  dealing  with  the  case  of  the  others. 
This  was  all  that  could  be  demanded.  Commonwealth  v. 
Ingraham,  7  Gray,  46;  Commonwealth  v.  Bingham,  158  Mass. 
169,  171.  It  hardly  needs  saying  that  the  assumption  in  a  part 
of  the  defendants'  argument,  that  all  evidence  of  declarations  in 
conspiracy  must  be  admissible  against  all,  is  unfounded. 

Evidence  that  fraudulent  voters  were  spoken  to  by  one  of  the 
conspirators  before  all  of  them  had  come  into  the  scheme  was 
admissible  in  connection  with  the  proof  that  the  others  did 
come  in  and  by  implication  adopted  the  act.  Also  the  usual 
way  of  proving  a  conspiracy  is  by  showing  a  series  of  acts  on 
the  part  of  the  several  defendants  all  converging  to  one  point. 

The  district  attorney,  when  certain  evidence  was  objected  to, 
said:  "It  is  the  flight  of  Ryan  I  want  to  show."  An  exception 
was  noted.  But  without  more  it  is  enough  to  say  that  the 
remark  was  not  subject  to  exception.  O'Driscoll  v.  Lynn  & 
Boston  Railroad,    180   Mass.    187;     Commonwealth   v.    McConnell, 


108  MASSACHUSETTS  ELECTION  CASES  —  1902. 

162  Mass.  499,  503;    Commonwealth  v.  Poisson,  157  Mass.  510, 
513. 

All  that  was  necessary  to  give  was  given  of  the  request  touch- 
ing the  ignorance  of  the  grand  jury  of  the  names  of  the  persons 
described  in  the  indictment  as  unknown.  See  Commonwealth  v. 
Coy,  157  Mass.  200,  215.  The  court  properly  left  the  weight  of 
the  testimony  of  fellow  conspirators  to  the  jury.  Commonwealth 
v.  Bishop,  165  Mass.  148,  150.  It  does  not  appear  to  us  to 
need  argument  that  there  was  sufficient  evidence  of  the  guilt 
of  the  defendant  Rogers.  The  preliminary  meetings  were  in  his 
house,  he  was  present,  and  agreed  to  contribute  money  toward 
the  end,  and  he  helped  at  the  time  of  the  caucus. 

We  have  not  neglected  the  consideration  of  any  part  of  the 
defendant's  argument,  but  we  think  the  mention  of  other  points 
and  further  discussion  superfluous. 

Exceptions  overruled. 

P.  J.  Doherty  and  A.  E.  Burr  for  Rogers. 
F.  W.  Kittredge  for  Lord. 

J.  F.  Sweeney,  F.  B.  Livingstone  and  G.  A.  Flynn  for  Winsloe. 
S.  J.  Elder,  W.  C.  Wait  and  E.  A.  Whitman  for  Newmarch. 
M.    J.    Sughrne,    First    Assistant    District    Attorney,    for    the 
Commonwealth. 


FRITZ   V.   CREAN.      SUP.  JUD.   CT.,   1903.  109 


SUPREME   JUDICIAL   COURT. 

Jacob  Fritz  v.  Anthony  J.  Crean. 

(Reported  in  182  Maps.  433.) 

Franklin,  Dec.  1,  1902  —  Jan.  7,  1903.    Present,  Knowlton,  C.J.,  Morton, 
Lathrop,  Hammond  and  Loring,  JJ. 

Elections.  —  A  warrant  in  writing  for  a  meeting  of  a  fire  district  signed  by  the 
chief  engineer  is  a  sufficient  compliance  with  the  provision  of  R.  L.  c.  32,  sec.  55, 
that  such  a  meeting  shall  be  called  when  requested  in  writing  by  the  chief  engineer. 

Same.  —  An  act  creating  a  fire  district  provided  that  it  might  "adopt  by-laws 
prescribing  by  whom  and  how  meetings  may  be  called  and  notified."  One  of  the 
by-laws  of  the  district  provided  that  "the  annual  meeting  shall  be  called  according 
to  law."  The  district  passed  a  vote  requiring  copies  of  the  warrant  calling  a  meet- 
ing to  be  posted  at  various  places  named,  but  this  vote  did  not  operate  as  an  amend- 
ment to  the  by-law  because  not  adopted  in  the  manner  required  for  such  an  amend- 
ment. A  meeting  of  the  district  was  notified  in  accordance  with  R.  L.  c.  32,  sec. 
55,  but  the  vote  requiring  the  posting  of  copies  of  the  warrant  was  not  complied  with. 
Held,  that  the  meeting  was  notified  properly  "according  to  law"  as  required  by  the 
by-laws. 

Same.  —  Under  R.  L.  c.  32,  sec.  55,  if  a  declaration  by  the  moderator  of  a  meet- 
ing of  a  fire  district  is  necessary  in  order  to  complete  an  election  of  an  officer,  a 
declaration  made  by  tellers  in  the  presence  of  the  moderator  and  received  by  the 
meeting  is  a  declaration  by  the  moderator  within  the  meaning  of  the  statute. 

Evidence.  —  Sem.bJe,  that  where  oral  evidence  of  the  doings  of  a  meeting  of  a 
fire  district  has  been  put  in  without  objection,  it  is  too  late  to  take  the  ground  that 
the  declaration  by  the  moderator  of  the  vote  of  the  meeting  must  appear  by  the 
records  of  the  clerk  alone,  but,  if  such  a  record  is  required,  a  record,  stating  that  there 
was  a  declaration  of  the  election  accepted  by  the  meeting,  imports  a  declaration  by 
the  moderator,  if  such  a  declaration  is  necessary. 

Same.  —  If  one  who  has  been  declared  elected  chief  engineer  at  a  meeting  of  a 
fire  district  is  present  at  a  recount,  to  guard  his  interests,  he  is  not  estopped  thereby 
from  setting  up  the  illegality  of  the  recount. 

Elections.  —  Where,  as  in  case  of  the  election  of  a  chief  engineer  by  a  fire  district 
under  R.  L.  c.  32,  sec.  54,  there  is  no  provision  for  a  recount,  the  original  count  is 
final.  In  such  a  case  the  clerk  should  destroy  the  ballots,  and,  if  illegally  he  preserves 
them,  they  cannot  be  used  to  invalidate  the  election. 

Loring,  J.  This  is  a  petition  for  a  writ  of  mandamus,  brought 
to  enforce  the  right  of  the  petitioner  to  the  office  of  chief  engineer 
of  the  Turner's  Falls  Fire  District.  It  appeared  at  the  hearing 
that  a  meeting  of  the  fire  district  was  held  on  May  19,  1902,  at 
which  the  tellers  of  the  meeting  reported  that  the  petitioner 
had  received  two  hundred  and  sixty-eight  votes  and  the  re- 
spondent two  hundred  and  sixty-one.  Subsequently,  upon  the 
petition  of  eleven  voters  of  the  district,  the  registrars  of  voters  of 
the  town  of  Montague  recounted  the  votes  and  found  and  re- 


110  MASSACHUSETTS  ELECTION  CASES  —  1903. 

ported  to  the  clerk  of  the  district  that  the  petitioner  had  two 
hundred  and  sixty-one  votes  and  the  respondent  two  hundred  and 
sixty-five.  Thereupon  the  clerk  gave  a  certificate  of  election  to 
the  respondent,  and  he  has  since  acted  as  chief  engineer. 

The  respondent  offered  to  show  that  the  count  made  by  the 
registrars  of  voters  was  correct,  by  producing  the  original 
ballots,  coupled  with  evidence  that  they  had  remained  sealed 
and  not  tampered  with  since  the  meeting  when  handled  on  the 
recount. 

It  is  now  admitted  that  there  is  no  authority  for  recounting 
the  votes  cast  at  such  a  meeting,  and  the  legality  of  the  peti- 
tioner's election  is  attacked  on  other  grounds. 

1.  The  first  ground  on  which  it  is  attacked  is  that  the  meeting 
was  not  properly  called.  It  is  provided  by  R.  L.  c.  32,  sec.  55, 
that  the  meeting  shall  be  called  when  requested  in  writing  by 
the  chief  engineer,  etc.  The  warrant  in  case  of  this  meeting  was 
in  writing  and  was  signed  by  the  chief  engineer.  That  was 
sufficient. 

2.  The  second  ground  of  attack  is  that  the  meeting  was  not 
properly  notified.  This  contention  rests  on  the  fact  that  at 
some  time  not  stated,  prior  to  the  meeting  in  question,  the 
district  had  voted  under  an  article  "To  determine  the  manner 
of  posting  warrants  and  to  transact  any  other  business  that  may 
legally  come  before  the  meeting,"  "that  copies  of  the  warrant 
be  posted  at  the  Farren  Hotel,  depot,  post  office  and  by  publish- 
ing in  the  'Reporter'  at  least  seven  days  before  said  meeting." 
This  vote  was  not  complied  with  in  the  notification  given  of 
the  meeting  in  question.  But  the  act  creating  the  fire  district 
provides  that  it  "may  adopt  by-laws  prescribing  by  whom  and 
how  meetings  may  be  called  and  notified."  St.  1886,  c.  266, 
sec.  11.  One  of  the  by-laws  of  the  district  provided  that  "the 
annual  meeting  shall  be  called  according  to  law."  The  vote  in 
question  did  not  operate  as  an  amendment  of  the  by-laws 
because  it  never  had  been  "presented  at  a  regular  meeting  of 
the  board  of  engineers"  or  "received  the  sanction  of  the  majority 
of  the  board  of  engineers  at  a  subsequent  regular  meeting," 
as  required  by  the  article  in  the  by-laws  of  the  district  as  to 
amending  those  by-laws.  The  meeting  was  notified  in  ac- 
cordance with  R.  L.  c.  32,  sec.  55,  and  for  that  reason  was 
notified  in  compliance  with  the  by-laws  of  the  district,  which 
adopted  the  provisions  of  the  general  laws.     R.  L.  c.  32,  sec.  55. 

3.  The  next  contention  is  that  the  moderator  did  not  make  a 
declaration   that   the   petitioner   was   elected.      By   R.   L.   c.   32, 


FRITZ   V.  CREAN.      SUP.  JUD.  CT.,   1903.  Ill 

sec.  55,  the  moderator  of  the  fire  district  has  the  powers  of  the 
moderator  of  a  town  meeting,  and  by  R.  L.  c.  11,  sec.  332,  it 
is  provided  that  the  moderator  of  the  town  "shall  .  .  .  make 
public  declaration  of  all  votes."  In  the  case  at  bar  the  declara- 
tion was  made  by  the  tellers  in  the  presence  of  the  moderator, 
and  was  received  by  the  meeting.  Assuming  without  deciding 
that  a  declaration  by  the  moderator  was  necessary,  we  think 
that  that  was  a  declaration  by  the  moderator  within  the  statute. 
See  in  this  connection  Putnam  v.  Langley,  133  Mass.  204,  205. 

4.  The  next  objection  is  that  the  record  of  the  clerk  of  the 
district  does  not  show  that  a  declaration  of  the  election  of 
the  petitioner  was  made  by  the  moderator.  The  record  of  the 
clerk  is  as  follows:  "The  tellers  made  the  following  report: 
Total  vote  cast,  530;  for  chief  engineer,  Jacob  Fritz  has  268, 
Anthony  J.  Crean  has  261.  The  ballots  were  sealed  by  Lucas  J. 
March,  moderator,  and  D.  F.  Daly,  clerk,  and  at  11.06  p.m.  the 
meeting  voted  to  dissolve.  The  clerk  was  authorized  to  care 
for  the  ballots  by  the  moderator.  Daniel  F.  Daly,  Clerk." 
As  parol  evidence  of  the  doings  of  the  meeting  seems  to  have 
been  put  in  without  objection,  the  respondent  would  seem  to 
have  waived  his  right  to  have  the  matter  of  the  declaration 
having  been  made  determined  by  the  record  alone,  as  to  which 
see  Stoughton  School  District  v.  Atherton,  12  Met.  105,  113. 
But  however  that  may  be,  we  think  that  the  record  is  a  sufficient 
record  of  the  election  of  the  petitioner.  It  states  that  there  was 
a  declaration  of  the  election  accepted  by  the  meeting;  that 
imports  a  declaration  by  the  moderator,  if  such  a  declaration  is 
necessary. 

5.  The  next  objection  is  that  the  petitioner  is  estopped  to 
contest  the  recount  because  he  was  present  at  it.  We  think 
that  the  petitioner  could  attend,  when  he  was  notified  that  it 
was  proposed  without  right  to  recount  the  votes,  to  guard  his 
interests,  without  thereby  being  estopped  to  set  up  the  illegality 
of  the  recount.  As  no  recount  is  provided  for,  the  action  of  the 
clerk  in  preserving  the  ballots  was  illegal,  and  the  result  de- 
clared at  the  meeting  cannot  be  affected  by  the  recount  made  by 
the  registrars  of  voters.  For  the  same  reason  the  offer  to  prove 
that  the  count  made  in  the  meeting  was  erroneous  was  rightly 
refused.  Where  no  provision  is  made  for  a  recount,  the  original 
count  is  final  and  binding  upon  the  court  as  well  as  upon  others. 
See  Opinion  of  the  Justices,  117  Mass.  599,  600.  As  soon  as 
the    meeting    dissolved,    no    recount    being    possible,    the    ballots 


112  MASSACHUSETTS  ELECTION  CASES' — 1903. 

should  have  been  destroyed,  as  is  provided  in  case  of  elections 
in  cities  and  towns.     R.  L.  c.  11,  sec.  241. 

Writ  to  issue. 

F.    L.    Greene,    W.    A.    Davenport   and    A.    D.    Flower   for    the 
respondent. 

D.  Malone  for  the  petitioner. 


FLANDERS  V.   ROBERTS.      SUP.   JUD.   CT.,    1903.  113 


SUPREME   JUDICIAL   COURT. 

Parkman  B.  Flanders  ».  William  W.  Roberts  and  Others. 
Same  v.  William  W.  Roberts. 
Same  v.  William  W.  Roberts  and  Others. 
Same  v.  Willard  H.  Hunkins  and  Others. 

(Reported  in  182  Mass.  524.) 

Essex,  Jan.  12,  1903  —  Jan.  13,  1903.     Present,  Knowlton,  C.J.,  Morton, 
Hammond,  Loring  and  Braley,  JJ. 

Mistake  in  marking  Official  Ballot.  —  Under  R.  L.  c.  11,  sec.  238,  a  cross  marked 
on  a  ballot  in  the  square  opposite  a  blank,  and  next  below  the  square  opposite  the 
name  of  a  candidate,  cannot  be  counted  as  a  vote  for  that  candidate,  although  the 
person  who  marked  it  voted  by  a  cross  in  the  proper  square  for  each  of  the  other 
nominees  of  the  same  political  party,  eleven  in  number,  whose  names  were  on  the 
ballot. 

Return  of  Votes,  Record.  —  The  provision  of  R.  L.  c.  11,  sec.  267,  relating  to  re- 
counts of  ballots  cast  at  a  city  or  town  election,  that  "the  records  so  amended  shall 
stand  as  the  true  records  of  the  election,"  does  not  take  away  the  jurisdiction  of 
this  court  to  correct  errors  of  law  appearing  upon  the  face  of  the  record. 

Mandamus.  —  Mandamus  will  lie  against  the  registrars  of  voters  of  a  city  com- 
manding them,  upon  a  recount  under  R.  L.  c.  11,  sec.  267,  not  to  count  certain  bal- 
lots cast  for  mayor  on  which  the  voter's  choice  cannot  be  determined,  to  make  and 
sign  a  statement  of  the  questions  raised  by  the  application  for  a  recount  of  the 
votes  cast  for  mayor,  omitting  the  ballots  thus  defective  as  votes  for  any  person 
for  that  office,  and  to  return  this  statement  to  the  city  clerk. 

Registrars  of  Voters.  —  In  this  case  it  was  found  unnecessary  to  determine  whether 
the  action  of  a  board  of  registrars  of  voters  in  recounting  votes  under  R.  L.  c.  11, 
sec.  267,  is  purely  ministerial,  so  that  certiorari  will  not  lie  to  correct  an  error  in 
their  returns. 

Four  petitions,  filed  in  December,  1902,  one  for  a  writ  of 
certiorari  and  three  for  writs  of  mandamus  addressed  to  the  city 
clerk,  the  board  of  registrars  of  voters  and  the  board  of  alder- 
men of  the  city  of  Haverhill,  by  which  the  petitioner  sought  to 
be  declared  the  duly  elected  mayor  of  that  city. 

The  cases  were  heard  upon  the  petitions,  and  demurrers  and 
answers  thereto,  by  Loring,  J.,  who  reserved  them  for  the 
consideration  of  the  full  court.  If  the  petitioner  was  entitled 
to  the  relief  prayed  for,  and  if  the  court  had  jurisdiction  in  any 
form  of  proceeding  or  pleading  to  afford  it,  the  necessary  amend- 
ments, orders  and  decrees  were  to  be  made;  otherwise,  the 
petitions  were  to  be  dismissed. 

G.  F.  Williams  for  the  petitioner. 

B.  B.  Jones  (J.  H.  Pearl  with  him)  for  the  respondents. 


114  MASSACHUSETTS  ELECTION  CASES — 1903. 

Loring,  J.  The  main  question  here  is  whether  the  registrars 
of  voters  were  wrong  in  counting  eighteen  ballots  for  the  Re- 
publican candidate  for  mayor.  On  these  eighteen  ballots  there 
was  a  cross  in  the  square  opposite  the  blank  space  left  for  the 
insertion  of  a  name  of  a  candidate  whose  name  is  not  printed 
on  the  ballot,  and  the  name  of  the  Republican  candidate  was 
just  above  this  blank.  We  are  of  opinion  that  the  registrars  of 
voters  were  wrong  in  counting  those  ballots  as  they  did. 

The  question  whether  these  ballots  were  to  be  counted  by  the 
registrars  of  voters  as  votes  for  the  Republican  candidate  or 
not  was  a  question  to  be  determined  from  what  appears  on  the 
face  of  the  ballot  and  not  on  evidence  aliunde. 

The  rule  to  be  applied  is  this:  If  the  intent  of  the  voter  can 
be  fairly  determined,  effect  shall  be  given  to  that  intent  and  the 
vote  counted  in  accordance  therewith.  This  is  the  rule  originally 
laid  down  in  Strong,  Petitioner,  20  Pick.  484,  and  continued 
under  the  Australian  ballot  system  in  acts  which  are  now  R.  L. 
c.  11,  sec.  238,  providing  that  if  the  voter's  "choice  cannot  be 
determined,  his  ballot  shall  not  be  counted;"  and  this  has  been 
recognized  in  this  Commonwealth  in  all  the  reports  of  com- 
mittees of  the  Legislature  on  which  it  has  acted  in  deciding 
questions  of  this  kind  involved  in  the  election  of  its  members. 
See  also  Woodward  v.  Sarsons,  L.  R.  10  C.  P.  733. 

It  must  be  taken  to  be  established  that  where  a  cross  is  put 
in  the  square  opposite  the  blank  space  left  for  the  insertion  of  a 
name  of  a  candidate  by  the  voter,  and  nothing  more  appears, 
the  ballot  is  not  to  be  counted  as  a  ballot  for  the  candidate 
whose  name  is  printed  next  above  that  space.  This  was  so 
decided  by  this  court  in  1901.  O'Connell  v.  Mathews,  177  Mass. 
518.  It  had  been  adopted  previously  in  1897,  by  both  branches 
of  the  General  Court  of  the  Commonwealth,  following  the 
action  of  the  Governor's  Council  and  of  the  election  commis- 
sioners of  the  city  of  Boston  in  Sullioan  v.  Allen,  Mass.  Election 
Cases  (Ed.  1885-1897),  99.  In  1896  a  similar  decision  had  been 
made  by  the  Massachusetts  House  of  Representatives  in  Morgan, 
Petitioner,'  Mass.  Election  Cases  (Ed.  1885-1902),  85.  In  that 
case  the  mark  was  opposite  the  space  above  the  printed  name 
of  the  first  candidate  outside  of  the  space  for  those  candidates, 
and  immediately  over  the  column  of  the  squares  for  the  crosses. 
The  same  conclusion  has  been  reached  in  Pennsylvania.  In  re 
Flynn,  181  Penn.  St.  457. 

It  is  sought  to  take  this  case  out  of  the  rule  which  has  now 
become  established,  because  in  the  case  at  bar  the  voter  in  case 


FLANDERS  V.   ROBERTS.      SUP.   JUD.    CT.,    1903.  115 

of  each  of  the  ballots  in  question  voted  by  a  cross  in  the  proper 
square  for  the  republican  nominee  for  each  one  of  all  the  other 
offices,  eleven  in  number,  on  the  ballot. 

But  the  rest  of  each  of  the  ballots  in  question  shows,  if  it 
shows  anything,  that  the  voter  knew  exactly  what  he  had  to  do, 
if  he  wanted  to  vote  for  a  candidate.  What  he  has  done  is  to 
throw  a  ballot  for  a  blank.  We  may  conjecture  that  this  was 
a  mistake,  and  that  it  is  not  what  he  intended  to  do.  But  the 
question  is  not  one  of  conjecture,  but  of  what  the  ballot  shows 
that  he  intended  to  do.  The  ballot  shows  that  he  cast  a  blank 
vote  for  mayor,  and  we  must  hold  that  to  have  been  his  in- 
tention. The  same  conclusion  was  reached  under  similar  cir- 
cumstances by  the  House  of  Representatives  of  the  Common- 
wealth in  Morgan,  Petitioner,  Mass.  Election  Cases  (Ed.  1885- 
1902),  85. 

It  is  to  be  remarked  that  the  earlier  acts  in  Massachusetts 
did  not  require  the  cross  to  be  put  in  the  square  (Sts.  1888,  c. 
436,  sec.  23;  1889,  c.  413,  sec.  23)  as  the  present  act  does. 
R.  L.  c.  11,  sec.  227  (re-enacting  Sts.  1893,  c.  417,  sec.  162; 
1898,  c.  548,  sec.  224). 

The  second  question  raised  by  the  respondents  is  the  right  of 
this  court  to  correct  this  error,  and  they  have  argued  that  the 
court  is  neither  a  canvassing  board  nor  a  returning  board. 
That  certainly  is  true,  but  still  we  are  of  opinion  that  we  can 
correct  the  error.  We  have  jurisdiction  to  correct  errors  of  law 
appearing  on  the  face  of  the  papers  made  by  a  returning  board 
in  counting  a  ballot  as  a  vote  for  a  candidate  for  office  which 
is  not  a  vote  for  that  candidate.  The  jurisdiction  was  estab- 
lished by  Strong,  Petitioner,  20  Pick.  484,  and  it  still  exists 
unless  it  has  been  taken  away  by  statute.  The  respondents 
contend  that  it  has  been  taken  away  by  R.  L.  c.  11,  sec.  267. 
Their  contention  is  that  the  words  "and  the  records  so  amended 
shall  stand  as  the  true  records  of  the  election"  prevent  this 
court  from  interfering  to  correct  an  error  of  law,  if  one  was 
made,  in  the  recount  of  the  votes. 

The  phrase  relied  on  is  found  for  the  first  time  in  St.  1863, 
c.  144,  sec.  3;  after  that  it  is  found  in  Sts.  1874,  c.  376,  sec.  42; 
1876,  c.  188,  sec.  4;  Pub.  Sts.  c.  7,  sec.  36;  Sts.  1884,  c.  299, 
sec.  31;  1886,  c.  262,  sec.  1;  1890,  c.  423,  sec.  104;  1893,  c. 
417,  sec.  207;  1898,  c.  548,  sec.  264.  The  original  act,  St.  1863, 
c.  144,  sec.  3,  and  each  of  the  subsequent  acts  apply  to  elections 
to  the  House  of  Representatives  of  the  United  States,  to  elections 
to  both  branches  of  the  General   Court  of  the   Commonwealth, 


116  MASSACHUSETTS  ELECTION  CASES — 1903. 

and  to  many  city  councils  which  by  their  charters  are  final  judges 
of  their  own  elections.  The  Legislature  could  not  constitutionally 
have  provided  that  the  statutory  recount  provided  for  in  these 
acts  should  preclude  the  national  House  of  Representatives  or 
either  branch  of  the  General  Court  of  the  Commonwealth  from 
dealing  with  any  questions  passed  upon  by  the  board  whose 
duty  is  was  to  make  the  recount,  and  it  cannot  be  held  that  the 
Legislature  intended  by  one  and  the  same  clause  to  preclude 
this  court  from  reviewing  the  action  of  the  board  for  errors  in 
law  in  case  of  officers  whose  election  is  not  covered  by  the 
Constitution,  when  it  is  admitted  that  as  a  matter  of  con- 
struction in  view  of  the  provisions  of  the  Constitution  it  has  not 
made  the  action  of  that  board  final  in  case  of  the  members  of 
the  national  House  of  Representatives  and  the  members  of  the 
General  Court. 

The  reason  for  the  clause  is  plain:  The  original  return  is 
made  by  one  person  or  board  of  persons,  namely,  the  precinct 
officers,  the  recount  by  another,  the  registrars  of  voters,  and  the 
amendment  by  a  third  person,  the  city  or  town  clerk.  All 
that  the  clause  means  is  that  the  amendment  of  the  return, 
although  not  made  by  the  original  maker  of  the  return  nor  by 
the  recounting  board,  shall  stand  as  amended  under  the  section 
when  made  by  the  third  person. 

Moreover,  the  statutes  which  provide  for  the  preservation  of 
ballots  contemplate  their  being  kept  until  the  contest  is  ended, 
and  not  merely  until  a  recount  has  been  had.  St.  1863,  c.  144, 
sec.  3.  See  Opinion  of  the  Justices,  117  Mass.  599,  601.  This 
again  negatives  the  idea  that  the  recount  is  final,  and,  without 
tracing  this  statute  through  all  its  re-enactments,  it  is  the  law 
to-day.     R.  L.  c.  11,  sec.  266. 

Apart  from  the  fact  that  the  clause  here  in  question  is  in  con- 
trast with  that  under  consideration  in  Attorney-General  v.  Drohan, 
169  Mass.  534,  as  was  pointed  out  in  that  opinion  at  page  538, 
the  matter  sought  to  be  submitted  to  the  court  there  was  a 
question  of  an  entirely  different  kind  from  that  in  question  in 
the  case  at  bar.  In  that  case  the  Democratic  city  committee 
undertook  to  pass  upon  the  question  of  fact  that  the  plaintiffs 
were  elected  by  votes  of  Republicans  at  the  Democratic  caucus  in 
question,  and  the  sole  question  was  whether  the  Democratic 
city  committee,  not  whether  this  court,  was  ousted  of  jurisdic- 
tion. The  only  question  submitted  to  the  court  was  whether 
the  action  of  the  board  to  recount  or  that  of  the  committee  was 


FLANDERS  V.   ROBERTS.      SUP.    JUD.   CT.,    1903.  117 

final.  It  was  not  a  case  where  this  court  was  asked  to  correct 
an  error  of  law  made  by  the  recounting  board.  $$ 

The  contention  that  the  Legislature  was  ousted  of  power  to 
reverse  the  determination  of  the  recounting  board  was  made 
and  overruled  in  Shepard  v.  Sears,  Mass.  Election  Cases  (Ed. 
1885-1897),  30. 

The  respondents'  next  contention  is  that  the  mayor  as  the 
presiding  officer  of  the  board  of  aldermen  is  a  member  of  the 
board  within  the  provisions  of  its  charter,  St.  1867,  c.  251, 
sec.  9,  which  makes  the  aldermen  "judge  of  the  elections  of  its 
own  members,"  and  that  the  action  of  that  board  declaring 
the  republican  candidate  to  be  elected  mayor  under  R.  L.  c.  11, 
sec.  269,  is  final  within  Peabody  v.  School  Committee  of  Boston, 
115  Mass.  383.  They  contend  that  this  power  of  the  aldermen 
is  not  only  not  revoked,  but  is  continued  by  R.  L.  c.  11,  sees. 
266,  269.  They  also  contend  that  since  by  R.  L.  c.  8,  sec.  5, 
cl.  10,  "'the  words  "mayor  and  aldermen"  mean  board  of 
aldermen  except  as  applied  to  appointments,'  it  follows  that  the 
board  of  aldermen  were  the  judges  of  the  election  of  the  mayor 
and  aldermen,  and,  as  above  stated,  the  Revised  Laws  do  not 
modify  their  powers  in  that  respect." 

We  are  of  opinion  that  although  the  aldermen  of  Haverhill  are 
the  final  judges  of  the  election  of  aldermen,  they  are  not  the  final 
judges  of  the  election  of  the  mayor. 

Fritz  v.  Crean,  ante,  433,  relied  on  by  the  respondents,  was  not 
a  case  where  there  was  an  error  of  law  apparent  on  the  face  of 
the  papers,  but  a  case  where  it  was  contended  that  there  had 
been  an  error  of  computation  in  the  counting  of  the  ballots  in 
the  election  of  an  officer  where  the  result  of  the  election  was 
made  and  accepted  by  it,  and  where  there  was  no  provision  of 
law  for  the  preservation  of  the  ballots  or  for  a  recount. 

We  are  of  opinion  that  the  petitioner  is  entitled  to  a  remedy 
by  mandamus.  He  cannot  maintain  both  mandamus  and 
certiorari.  For  that  reason  it  is  not  necessary  to  consider 
whether  the  action  of  the  board  of  registrars  in  recounting  votes 
under  R.  L.  c.  11,  sec.  267,  is  not  purely  ministerial.  See  in 
that  connection  Clark  v.  Board  of  Examiners,  126  Mass.  282; 
Luce  v.  Board  of  Examiners,  153  Mass.  108.  If  the  action  of 
the  board  under  R.  L.  c.  11,  sec.  267,  is  ministerial,  certiorari 
does  not  lie  to  correct  errors  made  by  them  when  acting  under 
that  section.  Locke  v.  Lexington,  122  Mass.  290;  Old  Colony 
Railroad  v.  Fall  River,  147  Mass.  455,  462. 


118  MASSACHUSETTS  ELECTION  CASES  —  1903. 

In  the  petition  for  a  mandamus  against  the  registrars  of  voters, 
an  order  may  issue  commanding  them  not  to  count  said  eighteen 
ballots  as  votes  for  the  Republican  candidate  for  mayor,  and 
to  make  and  sign  a  statement  of  the  questions  raised  by  the 
applications  for  a  recount  of  the  votes  cast  for  mayor,  omitting 
said  ballots  as  votes  for  any  person  for  that  office,  and  to  return 
said  statement  to  the  city  clerk. 

And  it  further  appearing  that  the  ballots  have  been  im- 
pounded and  are  now  in  the  custody  of  the  clerk  of  this  court 
for  the  county  of  Essex,  an  order  may  be  entered  directing 
said  clerk  to  deliver  said  ballots  to  the  registrars  of  voters,  and 
directing  the  registrars  of  voters  to  seal  each  envelope  with  a 
seal  provided  for  the  purpose,  and  certify  on  each  envelope 
that  the  same  has  been  opened  and  again  sealed  in  conformity 
to  law,  and  to  return  said  envelopes  to  the  city  clerk. 

The  petitions  for  mandamus  against  the  city  clerk  and  the 
board  of  aldermen  may  await  further  applications  on  the  part  of 
the  petitioner  if  these  officers  fail  to  perform  their  duty  on  the 
registrars  of  voters  correcting  their  count  and  sending  a  state- 
ment of  the  result  to  the  city  clerk. 

So  ordered. 


ATTORNEY-GENERAL  V.  HUTCHINSON.      SUP.  JUD.  CT.,   1904.        119 


SUPREME   JUDICIAL  COURT. 

Attorney-General  v.   John   F.    Hutchinson   and    Others. 

(Reported  in  185  Mass.  85.) 

Middlesex,  Nov.  16,  1903  —  Feb.  25,  1904.    Present,  Knowlton,  C.J.,  Mor- 
ton, Lathrop,  Barker  and  Braley,  JJ. 

Elections.  —  Under  St.  1898,  c.  548,  sec.  335,  336,  361,  a  town,  which  has  adopted 
the  use  of  official  ballots  for  the  election  of  town  officers,  may,  at  a  meeting  held 
more  than  thirty  days  before  the  next  annual  meeting,  vote  to  abandon  the  method 
of  electing  selectmen  provided  by  section  335,  theretofore  adopted  by  the  town, 
and  return  to  its  former  method  of  electing  annually  three  selectmen  to  serve  for 
one  year. 

Information,  in  the  nature  of  quo  warranto,  filed  by  the  At- 
torney-General on  March  12,  1903,  to  determine  by  what 
authority  the  respondents  Hutchinson,  Taylor  and  Spaulding 
held  the  offices  of  selectmen  of  the  town  of  Lexington,  and 
praying  for  an  order  to  set  aside  their  election  as  such  selectmen. 

The  case  came  on  to  be  heard  before  Morton,  J.,  and  was 
reported  by  him  for  determination  by  the  full  court  upon  the 
pleadings  and  the  facts  reported,  such  judgment  or  decree  to 
be  entered  as  the  pleadings  and  the  facts  should  require. 

H.  Albers  for  the  plaintiff. 

H.  G.  Allen  for  the  defendants. 

Braley,  J.  Prior  to  the  enactment  of  St.  1878,  c.  255,  towns 
at  their  annual  meeting  elected  a  board  of  selectmen  whose  term 
of  office  was  for  a  period  of  one  year.  By  that  act,  any  town 
which  accepted  its  provisions  might  at  any  annual  meeting 
choose  them,  so  that  the  tenure  of  office  of  each  member  of  the 
board  would  be  for  a  term  of  three  years.  If  for  any  reason  a 
town  adopting  this  method  desired  to  return  to  the  old  system, 
it  might  do  so  at  any  annual  meeting.  Pub.  Sts.,  c.  27,  sees. 
64-69. 

Subsequent  legislation  revising  and  codifying  the  laws  relating 
to  elections  substantially  re-enacted  this  provision.  Sts.  1893, 
c.  417,  sec.  267;    1898,  c.  548,  sec.  335,  now  R.  L.,  c.  11,  sec.  339. 

When  the  town  of  Lexington  at  the  meeting  held  in  January, 
1900,  voted  to  exercise  the  choice  given  by  these  statutes  of 
electing  selectmen,   and  voted   "that  at  the  annual   meeting  in 


120  MASSACHUSETTS  ELECTION  CASES  —  1904. 

March  of  the  current  year  the  town  shall  elect  one  selectman 
for  the  term  of  one  year,  one  for  the  term  of  two  years,  and  one 
for  the  term  of  three  years,  and  that  at  each  annual  meeting 
thereafter  it  shall  elect  one  selectman  for  the  term  of  three 
years,"  it  legally  decided  to  abandon  the  old  system  of  tenure 
of  such  officers  and  adopted  the  new. 

Between  the  time  when  towns  were  given  this  option  within 
certain  limits  of  regulating  the  term  of  office  of  selectmen,  and 
the  date  of  the  vote  making  the  change,  the  General  Court  had 
entered  upon  a  course  of  legislation  by  which  the  method  of 
preparing  for  and  conducting  State,  city  and  town  elections  was 
radically  changed.  Sts.  1888,  c.  436;  1889,  c.  413;  1893,  c.  417; 
1898,  c.  548;    R.  L.  c.  11. 

Ballots  to  be  used  in  voting  at  State  and  city  elections  were 
to  be  printed  and  distributed  at  the  public  expense,  and  the 
nomination  of  candidates  for  office,  and  the  preparation,  form 
and  delivery  of  ballots,  and  the  manner  of  voting,  were  marked 
out  in  great  detail. 

No  provision,  however,  was  made  in  the  first  two  acts,  which 
referred  solely  to  State  and  city  elections,  for  regulating  the 
election  of  town  officers,  and  the  method  of  conducting  such  an 
election  remained  the  same  as  before.  The  next  year  the  Legis- 
lature by  a  separate  act  extended  these  provisions  to  town  elec- 
tions; provided  any  town  desired  to  accept  the  act,  and  make 
its  choice  manifest  by  adopting  its  provisions,  otherwise  the 
method  was  left  unchanged.  St.  1890,  c.  336.  By  this  statute 
a  change  was  made  in  the  manner  of  conducting  the  election  of 
town  officers  only  in  those  towns  which  duly  accepted  it. 

Under  this  act  it  follows  that  towns  must  be  divided  into  two 
classes,  —  those  that  accept,  and,  having  accepted,  must  use  the 
ballot  therein  prescribed,  and  towns  which  did  not  accept,  and 
remained  under  the  original  system. 

The  town  of  Lexington,  by  its  vote  at  the  town  meeting  held 
Feb.  21,  1891,  had  accepted  the  provisions  of  St.  1890,  c.  386, 
and  thereby  placed  itself  in  the  class  of  towns  to  prepare  for 
and  conduct  the  election  of  town  officers  in  the  manner  therein 
provided.  And  when  it  voted  to  make  the  term  of  office  of  its 
selectmen  three  years,  it  exercised  this  privilege  as  a  town  which 
had  used  the  official  ballot  in  voting  for  such  officers  for  nearly 
nine  years. 

By  the  act,  after  it  was  accepted,  and  the  "system  or  manner 
of  electing  any  town  officers"  had  been  determined,  no  return  to 
the  former  system  could  be  made,  unless  the  meeting  at  which 


ATTORNEY-GENERAL  V.  HUTCHINSON.      SUP.  JUD.  CT.,   1904.        121 

the  change  was  decided  upon  was  held  at  least  thirty  days  before 
any  annual  town  election  at  which  town  officers  were  to  be 
elected,  though  in  towns  which  still  continued  under  the  former 
system  of  voting  this  change  as  to  their  office  could  be  made  at 
the  annual  meeting  at  which  they  were  to  be  elected.  Sts.  1890, 
c.  386,  sec.  2;    1898,  c.  548,  sees.  335,  336,  361. 

If  the  various  sections  which  embrace  previous .  legislation  in 
whole  or  in  part,  and  which  make  up  the  codification  of  former 
acts  in  St.  1898,  c.  548,  are  examined  and  compared,  so  far  as 
they  relate  to  the  election  of  town  officers,  nothing  appears  that 
is  so  inconsistent  or  repugnant  but  that  full  effect  can  be  given 
to  each  provision. 

The  intention  of  the  Legislature  is  plain.  It  is  important  that 
the  voters  should  know  whether  a  candidate  for  the  office  of 
selectman  is  to  be  elected  for  one  or  three  years,  and  in  towns 
which  use  ballots  prepared  at  the  public  expense,  and  where  the 
election  is  conducted  in  the  same  manner  as  State  and  city  elec- 
tions, some  time  is  necessary  to  prepare  and  distribute  the 
ballots  before  the  election  takes  place. 

For  this  reason,  a  limit  of  thirty  days  before  the  next  annual 
election  was  fixed  as  the  time  after  which  the  length  of  the  term 
of  officers  to  be  then  elected  could  not  be  changed;  but  there 
is  no  such  requirement  in  towns  that  do  not  use  the  official  ballot. 

The  town  meeting  of  Jan.  28,  1901,  was  held  more  than  thirty 
days  before  the  next  annual  meeting,  and  when  the  town  voted 
under  Article  2  of  the  warrant,  "that  at  the  annual  town  meet- 
ing in  March,  1901,  the  town  shall  elect  one  selectman  for  the 
term  of  one  year,  and  in  March,  1902,  shall  elect  two  selectmen 
for  the  term  of  one  year,  and  in  March,  1903,  shall  elect  three 
selectmen  for  the  term  of  one  year,  and  thereafter  shall  annually 
elect  three  selectmen  for  the  term  of  one  year,  in  the  manner 
in  which  the  selectmen  have  been  elected  prior  to  the  election 
of  March  5,  1900,"  it  had  thereby  legally  voted  to  choose  its 
board  of  selectmen  so  that  the  tenure  of  each  member  should 
be  only  for  one  year.  And  the  three  selectmen  thereafter  elected 
would  each  serve  for  that  period. 

At  the  annual  meeting  following  this  action  by  the  town,  the 
respondent,  John  F.  Hutchinson,  was  elected  accordingly  a 
selectman  for  the  term  of  one  year.  For  reasons  not  necessary 
to  be  stated  he  afterwards  resigned,  and,  on  May  20,  1901,  at 
a  meeting  duly  called  to  fill  the  vacancy,  and  under  an  article 
in  the  warrant,  "to  choose  by  ballot  one  selectman  to  fill  a 
vacancy   for   the   term   ending   March,    1904,"   he   was   declared 


122  MASSACHUSETTS  ELECTION  CASES  —  1904. 

elected  a  selectman  for  the  term  ending  March,  1904,  and  since 
that  time  has  filled  and  now  claims  to  hold  the  office. 

The  other  respondents  now  in  office  were  each  chosen  as  select- 
men for  the  term  of  three  years. 

By  the  vote  of  Jan.  28,  1901,  which  remained  unchanged,  the 
town  had  decided  thereafter  to  elect  these  officers  for  the  term  of 
one  year,  and  it  must  be  held  that  the  several  respondents  have 
no  title  to  the  office.  It  follows  that  there  must  be  judgment  of 
ouster. 

So  ordered. 


ATTORNEY-GENERAL  V.   CAMPBELL.      SUP.   JUD.   CT.,    1906.  123 


SUPREME  JUDICIAL   COURT. 

Attorney-General  v.  Francis  A.  Campbell. 

(Reported  in  191  Mass.  497.) 

Suffolk,  March  9,  1906  —  May  16,  1906.    Present,  Knowlton,  C.J.,  Morton, 
Lathrop,  Loring  and  Braley,  JJ. 

Elections.  —  If  the  Governor  has  ordered  that  a  special  election  be  held  to  fill  a 
vacancy  in  the  office  of  a  clerk  of  court  at  the  same  time  as  the  annual  State  election, 
and  a  candidate  for  the  office  is  nominated  at  the  caucus  for  the  nomination  of 
State  officers  held  on  the  same  day  on  which  the  precept  for  the  special  election  is 
issued,  so  that  the  provisions  of  R.  L.  c.  11,  sees.  89,  90,  in  regard  to  the  calling  of 
a  caucus  for  a  special  election  are  not  complied  with,  and  if  the  nomination  is  cer- 
tified by  the  Secretary  of  the  Commonwealth  and  the  name  goes  unchallenged  upon 
the  printed  ballot,  and  the  candidate  is  elected,  the  irregularities  in  regard  to  the 
making  of  the  nomination  do  not  invalidate  his  election. 

Same.  —  Under  R.  L.  c.  11,  sec.  149,  when  a  certificate  of  a  nomination  for  a 
State  office  has  been  filed  with  the  Secretary  of  the  Commonwealth,  and  "is  in 
apparent  conformity  with  law,"  it  is  "valid  unless  objections  thereto  are  made  in 
writing"  and  are  filed  in  the  manner  prescribed  in  said  section. 

Information  in  the  nature  of  a  quo  warranto,  filed  by  the 
Attorney-General  on  May  27,  1905. 

The  case  came  on  to  be  heard  before  Lathrop,  J.  who  at  the 
request  of  the  parties  reserved  it  for  determination  by  the  full 
court  upon  the  pleadings  and  an  agreed  statement  of  facts,  such 
order  to  be  made  as  order  and  justice  might  require. 

F.  P.  Cabot  (F.  T.  Field,  Assistant  Attorney-General,  with 
him)  for  the  petitioner. 

N.  Matthews  (R.  Spring  with  him)  for  the  respondent. 

Knowlton,  C.J.  This  is  an  information  in  the  nature  of  a 
quo  warranto  to  determine  by  what  authority  the  respondent 
holds  the  office  of  clerk  of  the  Superior  Court  for  civil  business 
in  the  county  of  Suffolk.  Joseph  A.  Willard  was  elected  to  that 
office  for  the  term  of  five  years  from  the  first  Wednesday  of 
January,  1902.  On  Aug.  14,  1904,  he  died.  On  Sept.  3,  1904, 
the  justices  of  the  Superior  Court,  acting  under  R.  L.  c.  11, 
sec.  277,  appointed  Francis  P.  Ewing  Mr.  Willard's  successor, 
and  he  duly  qualified  and  entered  upon  the  duties  of  the  office. 
On  September  27  of  the  same  year  the  acting  Governor  of  the 
Commonwealth  issued   a   precept   to   the   board   of   aldermen   of 


124  MASSACHUSETTS  ELECTION  CASES  —  1906. 

Boston,  reciting  that  by  reason  of  the  death  of  Mr.  Willard  a 
vacancy  then  existed  in  the  office,  and  directing  them  to  notify 
and  summon  the  voters  to  fill  the  vacancy  for  the  remainder  of 
the  term  of  five  years  from  the  first  Wednesday  of  January, 
1902,  by  an  election  on  the  eighth  day  of  the  following 
November,  which  was  the  day  prescribed  by  the  statute  for  the 
annual  State  election.  The  aldermen  acted  upon  this  precept 
in  the  usual  way,  and,  on  the  day  appointed,  the  respondent 
was  elected  by  a  vote  of  46,166  ballots  cast  for  him,  45,835 
being  cast  for  Henry  Bellew,  and  2,759  cast  for  other  persons. 
The  respondent  took  the  prescribed  oath  and  entered  upon  the 
duties  of  the  office. 

The  Attorney-General  contends  that  he  was  not  legally  elected, 
first,  because  the  appointment  of  Mr.  Ewing  by  the  justices  was 
in  legal  effect  for  the  remainder  of  the  term  for  which  Mr. 
Willard  was  elected,  so  that  there  was  no  vacancy  to  be  filled 
by  election,  and  secondly,  because  the  precept  for  the  election 
was  not  seasonably  issued,  and  the  proceedings  which  the  law 
requires  to  render  an  election  valid  were  not  had  in  pursuance 
of  it.  The  last  part  of  this  contention  is  founded  on  the  fact 
that,  on  the  day  when  the  precept  was  issued,  caucuses  were 
being  held  for  the  nomination  of  officers  and  the  election  of 
delegates  to  conventions  to  nominate  officers,  to  be  voted  for 
at  the  election  on  November  8,  and  no  caucuses  were  held  for 
that  purpose  after  the  day  on  which  the  precept  was  issued. 

Article  19  of  the  Amendments  to  the  Constitution  of  Massa- 
chusetts, which  was  ratified  in  1855,  provides  for  the  election  by 
the  people  of  certain  officers  who  previously  had  been  appointed 
by  the  Governor,  including  clerks  of  the  courts.  By  this  amend- 
ment the  Legislature  was  required  to  prescribe  by  general  law 
for  the  election  of  these  officers.  By  the  St.  of  1856,  c.  173, 
sec.  2,  the  Legislature  provided  for  the  election  of  clerks  of  the 
courts,  with  a  special  requirement  that  in  Suffolk  County, 
instead  of  electing  a  single  officer  who  should  be  clerk  of  the 
Supreme  Judicial  Court  and  clerk  of  the  Superior  Court  for  that 
county,  as  in  other  counties  one  person  was  to  be  elected  to  be 
clerk  of  the  Supreme  Judicial  Court  and  clerk  of  the  Court  of 
Common  Pleas,  the  voters  should  elect  a  clerk  of  the  Supreme 
Judicial  Court  and  a  clerk  of  the  Superior  Court.  The  Superior 
Court  of  the  county  of  Suffolk  had  been  created  by  St.  1855, 
c.  449,  to  take  the  place  of  the  Court  of  Common  Pleas  in  that 
county.  In  the  St.  1856,  c.  173,  the  clerk  of  the  Superior 
Court  of  the  county  of  Suffolk  was  treated  in  the  same  way,  in 
all  particulars,  as  the  clerks  of  the  courts  were  treated  in  their 


ATTORNEY-GENERAL  V.    CAMPBELL.      SUP.    JUD.    CT,,    1906.  125 

relation  to  the  Court  of  Common  Pleas  in  other  counties.  All 
of  the  clerks  of  the  different  courts  referred  to  in  the  act  were 
removable  by  the  justices  of  the  Supreme  Judicial  Court,  or  a 
majority  of  them,  and  the  judges  of  the  several  courts,  or  a 
majority  of  them,  were  authorized,  in  case  of  a  vacancy,  to 
appoint  a  person  to  the  office  to  hold  it  until  the  next  annual 
election,  at  which  time  the  office  for  the  unexpired  term  was 
to  be  filled  by  a  vote  of  the  people.  In  case  of  a  vacancy  in  the 
office  of  clerk  of  any  of  these  courts,  the  proceedings  for  filling 
it  under  this  statute  would  have  been  such  as  were  taken  in 
the  present  case. 

By  the  St.  1859,  c.  196,  the  Superior  Court  was  established 
to  take  the  place  of  the  Court  of  Common  Pleas  throughout 
the  Commonwealth.  This  statute  provided  for  the  election  of 
clerks  of  the  Superior  Court,  including  one  for  civil  business  and 
one  for  criminal  business  in  Suffolk  County,  who  were  not  to 
be  clerks  of  the  Supreme  Judicial  Court,  as  were  the  clerks  of 
the  Superior  Court  in  other  counties.  In  other  respects  the 
statute  treats  clerks  of  the  Superior  Court  in  Suffolk  County  as 
it  treats  clerks  of  the  courts  in  other  counties. 

We  have  these  laws  compiled  in  the  General  Statutes  of  1860, 
and  by  c.  121,  sec.  7,  the  power  of  the  justices  to  appoint  a 
clerk  of  the  Superior  Court  when  there  is  a  vacancy  in  that  office 
in  the  county  of  Suffolk  is  clearly  stated.  The  appointee  is  to 
"hold  the  office  until  the  next  annual  election,  or  until  another 
is  elected  or  appointed  in  his  stead."  The  provision  for  elec- 
tions to  fill  vacancies  is  found  in  Gen.  Sts.  c.  10,  sec.  13,  which 
deals  with  clerks  of  the  courts  and  other  officers.  There  can 
be  no  doubt  that  a  clerk  of  the  Superior  Court  for  Suffolk 
County  is  included  in  the  term  "clerk  of  the  courts,"  found  in 
section  10  and  referred  to  in  section  13  of  this  chapter,  for  there 
is  no  other  provision  for  the  election  to  fill  a  vacancy  in  this 
office,  which  is  referred  to  in  Gen.  Sts.  c.  121,  sec.  7.  These 
provisions  of  the  General  Statutes  were  continued  without 
change  in  the  Pub.  Sts.  c.  10,  sees.  1,  3,  10,  13,  and  c.  159,  sec.  7. 
They  were  left  unaffected  by  the  St.  of  1890,  c.  423.  See  sees. 
188,  190,  197,  200. 

The  election  laws  were  again  revised  in  1893,  but  no  changes 
were  made  that  materially  affect  this  case.  St.  of  1893,  c.  417, 
sees.  146,  258,  251,  218,  222.  We  have  no  doubt  that  the  term 
"clerk  of  the  courts,"  in  section  218,  was  intended  to  include 
the  clerks  of  the  Superior  Court  in  the  county  of  Suffolk,  as  the 
same  terms  includes  them  in  former  statutes. 

In  the  revision  and  codification  contained  in  the  St.  of  1898, 


126  MASSACHUSETTS  ELECTION  CASES  —  1906. 

c.  548,  we  find,  at  the  end  of  section  274,  authority  to  the 
justices,  in  case  of  a  vacancy  in  the  office  of  clerk  of  the  Superior 
Court  for  the  county  of  Suffolk,  to  "appoint  a  clerk,"  without 
an  express  statement  of  the  term  for  which  they  are  to  make  the 
appointment.  But  here,  again,  we  find,  in  the  earlier  part  of 
this  section  and  in  section  277,  express  provisions  for  filling  a 
vacancy  in  the  office  of  clerk  of  the  courts  by  an  election  "at 
the  next  annual  state  election  for  which  precepts  can  be  season- 
ably issued."  In  this  statute,  as  in  the  former  statutes,  the 
term  "clerk  of  the  courts"  includes  the  clerks  of  the  Superior 
Court  in  Suffolk  County.  It  follows  that  the  appointment  by 
the  justices,  in  the  present  case,  which  referred  to  the  statute 
without  stating  the  length  of  the  term,  was  only  until  the  next 
annual  election  for  which  precepts  could  be  seasonably  issued. 
The  principal  provisions  of  the  act  last  cited  are  found,  without 
material  change,  in  the  R.  L.  c.  11,  sees.  211,  277,  280,  282, 
318. 

As  there  was  plenty  of  time  after  the  decease  of  Mr.  Willard 
to  issue  a  precept  seasonably,  for  an  election  to  fill  the  vacancy 
at  the  next  annual  State  election,  there  is  no  doubt  that  it  was 
the  duty  of  the  Governor  to  issue  such  a  precept. 

The  remaining  objections  to  the  election  are  all  founded  on 
the  irregularity  as  to  the  nomination  of  candidates.  It  is  said 
that  the  precept  was  issued  too  late.  It  is  true  that  the  caucuses 
were  in  progress  before  it  was  issued,  and  the  delegates  elected 
at  these  caucuses  put  the  respondent  in  nomination.  A  certifi- 
cate of  his  nomination  was  filed  with  the  Secretary  of  the 
Commonwealth,  which  was  in  proper  form,  and  his  name  was 
put  upon  the  official  ballot.  By  the  R.  L.  c.  11,  sec.  149,  it 
is  provided  that,  "when  certificates  of  nomination  and  nomina- 
tion papers  have  been  filed,  and  are  in  apparent  conformity 
with  law,  they  shall  be  valid  unless  objections  thereto  are  made 
in  writing."  Objections  may  be  filed  and  a  hearing  may  be 
had  before  the  State  Ballot  Law  Commission.  No  objection 
was  made  to  the  certificate  or  to  the  nomination  in  any  form 
at  any  time.  This  fact,  of  itself,  in  connection  with  the  statute, 
should  make  it  impossible  to  set  aside  the  election  for  irregu- 
larities in  making  the  nomination. 

The  precept  was  not  issued  too  late  to  allow  nominations  to 
be  made  properly.  This  was  a  special  election  to  be  held,  by 
direction  of  the  Governor,  for  a  special  purpose.  Authority  for 
it  rested  on  the  special  precept.  It  was  to  be  held,  by  virtue 
of  the  statute,  at  the  same  time  as  the  annual  State  election. 


ATTORNEY-GENERAL  V.    CAMPBELL.      SUP.   JUD.    CT.,    1906.  127 

The  officers  to  be  elected  at  the  annual  State  election  are 
prescribed  by  statute.  R.  L.  c.  11,  sees.  211,  318.  The  election 
of  any  other  officer  on  the  same  day  to  fill  a  vacancy  is  a  special 
election.  In  the  R.  L.  c.  11,  sec.  87,  the  nomination  of  can- 
didates for  special  elections,  who  are  to  be  voted  for  at  the 
annual  State  election,  is  a  subject  of  exception  to  the  pro- 
visions as  to  the  time  for  holding  caucuses  with  a  view  to  the 
nomination  of  other  candidates  to  be  voted  for  at  the  same 
time. 

As  this  was  a  special  election,  the  caucuses  relative  to  it 
should  have  been  called  under  the  R.  L.  c.  11,  sees.  89,  90,  which 
provide  that  they  "shall  be  held  at  such  time  and  place  and 
subject  to  such  reasonable  notice  as  the  political  committee  .  .  . 
may  determine."  This  committee  neglected  to  issue  a  call  for 
such  a  caucus,  and  this  was  an  irregularity.  The  nomination 
made  by  the  delegates  chosen  at  the  caucus  held  on  the  day 
when  the  Governor's  precept  was  issued  was  certified,  and 
went  unchallenged  upon  the  official  ballot. 

Does  that  fact  render  the  election  invalid?  We  are  of  opinion 
that  the  provision  already  referred  to,  in  R.  L.  c.  11,  sec.  149, 
answers  the  question  in  the  negative;  but  if  there  were  no  such 
provision  the  result  would  be  the  same.  The  people  must  be 
presumed  to  have  expressed  their  will  by  their  ballots.  We  are 
of  opinion  that,  while  the  provisions  as  to  holding  caucuses  for 
the  nomination  of  candidates  and  as  to  the  filing  of  nomination 
papers  are  binding  upon  the  officers  for  whose  guidance  they  are 
intended,  they  may  be  disregarded  in  determining  the  validity 
of  a  subsequent  election,  if  it  plainly  appears  that  the  will  of 
the  majority  of  the  electors  is  fairly  expressed  by  their  ballots. 
It  has  been  so  held  in  similar  cases  in  this  Commonwealth. 
Strong,  Petitioner,  20  Pick.  484;  Commonwealth  v.  Smith,  132 
Mass.  289;  Blackmer  v.  Hildreth,  181  Mass.  29.  In  the  last  of 
these  cases  there  was  a  failure  to  comply  with  the  statute  in 
regard  to  the  nomination  papers,  and  it  was  held  that  the 
irregularities  did  not  invalidate  the  election.  In  referring  to 
these  statutory  preliminaries,  Mr.  Justice  Hammond  said,  in 
the  opinion  of  the  court:  "But  with  the  preparation  of  the 
ballot  the  influence  of  these  provisions  ends.  If  there  be  ir- 
regularities like  those  in  this  case  they  do  not  accompany  the 
ballot  to  taint  it  in  the  hands  of  the  voter.  This  view  of  the 
statute  gives  due  weight  and  scope  to  the  provisions  in  question, 
and  preserves  the  sanctity  of  the  right  of  suffrage,  and  its  free 
and  honest  exercise.     To  hold  otherwise  would  be  to  lose  sight 


128  MASSACHUSETTS  ELECTION  CASES  —  1906. 

of  the  purpose  for  which  these  provisions  were  made,  namely, 
to  provide  the  method  and  time  for  the  preparation  of  the 
ballot,  and  would  subject  our  elections  to  intolerable  and  per- 
plexing technicalities  in  no  way  material  to  the  substantial 
merits  of  the  controversy,  or  to  the  freedom  and  result  of  the 
action  of  the  voters.  Its  natural  tendency  would  be  to  thwart 
rather  than  to  secure  a  true  expression  of  the  popular  will." 
A  similar  disregard  of  preliminary  requirements  and  other 
technicalities,  in  giving  effect  to  the  plainly  expressed  will  of  the 
people  at  elections,  has  been  shown  in  many  of  the  decisions  of 
other  States.  People  v.  Peck,  11  Wend.  604;  People  v.  Wood, 
148  N.  Y.  142;  People  v.  Wilson,  62  N.  Y.  186;  People  v. 
Hartwell,  12  Mich.  508;  State  v.  Gostze,  22  Wis.  363;  Cleland  v. 
Porter,  74,  111.  76;  Supervisors  of  DuPage  County  v.  People, 
65  111.  360;  Hoxsie  v.  Edwards,  24  R.  I.  338;  Bowers  v.  Smith, 
111  Mo.  45;    State  v.  Doherty,  16  Wash.  382. 

We  are  of  opinion  that  the  precept  of  the  Governor  was 
seasonably  issued,  and  that  the  irregularities  in  regard  to  making 
the  nominations  did  not  invalidate  the  election. 

Information  dismissed. 


ELDREDGE  V.  SELECTMEN,  CHATHAM.      SUP.  JUD.  CT.,   1906.        129 


SUPREME   JUDICIAL   COURT. 

Nathaniel  A.  Eldredge  v.  Selectmen  of  Chatham. 

(Reported  in  192  Mass.  409.) 

Suffolk,  May  16,  1906  —  June  19,  1906.    Present,  Knowlton,  C.J.,  Morton, 
Lathrop,  Braley  and  Sheldon,  JJ. 

Recount  of  Votes.  —  Under  R.  L.  c.  11  sees.  266,  267,  except  in  towns  where  the 
official  ballot  is  used  or  where  the  officers  are  "voted  for  on  one  ballot,"  there  can 
be  no  recount  of  the  votes  cast  for  an  officer  of  a  town  after  the  result  of  the  elec- 
tion has  been  announced  and  recorded  and  the  meeting  has  been  adjourned. 

Petition,  filed  March  5,  1906,  by  Nathaniel  A.  Eldridge  of 
Chatham  for  a  writ  of  mandamus  addressed  to  Meriton  E. 
Nickerson,  Alvin  Z.  Atkins  and  Oliver  E.  Eldredge,  acting  as 
selectmen  of  that  town,  commanding  the  respondents  Nickerson 
and  Atkins  to  recognize  the  petitioner  as  a  selectman  and  mem- 
ber of  their  board  in  place  of  the  respondent  Eldredge,  and 
commanding  the  respondent  Eldredge  to  refrain  from  intruding 
himself  as  a  member  of  that  board  or  doing  any  act  as  such 
member. 

The  case  came  on  to  be  heard  upon  the  petition  and  answers 
before  Hammond,  J.,  who  reported  it  for  determination  by  the 
full  court,  such  action  to  be  taken  as  law  and  justice  might 
require. 

The  justice  made  the  following  findings:  — 

I  find  that  at  the  town  meeting  the  tellers  duly  appointed  by 
the  moderator  reported  that  for  the  office  of  selectman,  assessor 
and  overseer  of  the  poor  the  petitioner  received  one  hundred 
and  fifty-two  votes  and  the  respondent  one  hundred  and  forty- 
nine  votes,  and  that  thereupon  the  moderator  announced  that 
the  petitioner  was  elected  and  the  records  of  the  clerk  were 
made  up  accordingly  and  were  approved  before  the  meeting 
adjourned;  and  that  upon  such  adjournment  no  question  was 
made  of  the  petitioner's  election. 

As  to  the  ballots  I  find  that  they  were  tied  and  carefully 
kept  together,  but  not  placed  in  a  sealed  envelope,  and  at  the 
close  of  the  announcement  by  the  moderator  were  delivered  by 
one  of  the  tellers  into  the  possession  of  the  town  clerk,  who 
retained  them  until  they  were  delivered  to  the  board  of  registrars 


130  MASSACHUSETTS  ELECTION  CASES  —  1906. 

for  a  recount.  I  find  that  the  recount  was  carefully  conducted 
and  that  the  petitioner  was  represented  by  counsel,  who  at 
the  close  of  the  recount  said  he  was  satisfied,  and  suggested  in 
substance  to  the  registrars  that  their  certificate  of  the  result  of 
the  recount  should  close  with  a  statement  that  the  town  records 
should  be  amended  in  accordance  therewith,  but  I  do  not  find 
that  any  of  the  rights  to  insist  upon  the  invalidity  of  the  recount 
were  waived  either  by  the  petitioner  or  by  his  counsel.  I  find 
that  the  registrars  had  before  them  all  the  ballots  and  none 
others  which  were  cast  at  the  election,  and,  if  it  be  material,  I 
find  that  the  recount  shows  the  true  result  of  the  election, 
namely,  that  the  petitioner  had  only  one  hundred  and  fifty-one 
votes,  while  the  respondent  had  one  hundred  and  fifty-two 
votes. 

I  find  that  the  petition  for  the  recount  was  not  sworn  to  by 
any  of  the  subscribers  thereto,  but  only  by  the  respondent, 
Oliver  E.  Eldredge,  and  that  the  town  clerk  before  whom  it  was 
sworn  was  not  a  justice  of  the  peace  nor  a  notary  public,  but 
was  town  clerk  and  a  member  of  the  board  of  registrars. 

At  the  hearing  the  petitioner  contended  that  the  declaration 
by  the  moderator  was  the  official  declaration  of  the  result  of  the 
election;  that  there  was  no  provision  in  law  for  the  recount  of 
votes  cast  at  such  an  election,  and,  moreover,  that  even  if  there 
was,  the  petition  was  not  sworn  to  by  the  right  persons  or  before 
the  proper  officer.  The  respondents  contended  that  the  recount 
was  in  accordance  with  law,  and  that  the  result  was  the  legal 
result  of  the  election. 

C.  Bassett  and  F.  Ranney  for  the  petitioner. 
H.  A.  Harding  for  the  respondents. 

Knowlton,  C.J.  At  a  meeting  of  the  voters  of  the  town  of 
Chatham  for  the  election  of  town  officers,  after  the  votes  had 
been  counted  it  was  announced  by  the  moderator  that  the 
petitioner  had  received  one  hundred  and  fifty-two  votes  for  the 
office  of  selectman,  assessor  and  overseer  of  the  poor,  and  the 
respondent,  Oliver  E.  Eldredge,  had  received  one  hundred  and 
forty-nine  votes.  The  petitioner  was  then  declared  elected, 
and  due  record  was  made  accordingly.  Afterwards  he  took  the 
oath  of  office  and  entered  upon  the  performance  of  his  duties. 
Upon  these  facts  it  would  appear  that  he  was  duly  elected,  and 
he  would  be  entitled  to  hold  the  office  throughout  its  term  if 
there  were  nothing  to  deprive  him  of  the  right. 


ELDREDGE  V.  SELECTMEN,   CHATHAM.      SUP.  JUD.   CT.,    1906.        131 

Subsequently  measures  were  taken  to  obtain  a  recount  of  the 
ballots.  A  recount  was  made  by  the  registrars  of  voters.  They 
found  that  the  respondent,  Eldredge,  had  received  one  hundred 
and  fifty-two  votes,  and  the  petitioner  only  one  hundred  and 
fifty-one  votes,  and  the  records  of  the  town  were  amended  ac- 
cordingly. The  respondent,  Eldredge,  has  been  recognized  by 
the  other  respondents  as  duly  elected,  and  is  now  in  the  per- 
formance of  the  duties  of  the  office.  The  questions  are  whether 
such  a  recount  was  authorized  by  the  statute,  and  whether  this 
recount  was  inaugurated  and  conducted  in  accordance  with  the 
provisions  of  law,  so  as  to  deprive  the  petitioner  of  the  office  to 
which  he  was  regularly  declared  elected  at  the  town  meeting. 

As  proceedings  for  a  recount  of  votes  are  strictly  statutory, 
they  are  of  no  effect  unless  they  are  authorized  by  the  statute 
and  begun  and  conducted  as  the  statute  provides.  The  town  did 
not  use  the  official  ballot,  and  the  town  clerk,  selectman,  asses- 
sors, treasurer,  collector  of  taxes  and  school  committee  were 
not  voted  for  on  one  ballot.  It  is  only  when  one  or  the  other 
of  these  conditions  exists  that  the  statute  provides  for  en- 
closing the  ballots  in  envelopes  and  preserving  them.  R.  L. 
c.  11,  sees.  239,  345.  Under  the  R.  L.  c.  11,  sees.  266,  267, 
when  an  application  for  a  recount  of  votes  is  made,  "the  enve- 
lopes containing  the  ballots,  sealed,"  are  to  be  transmitted  by 
the  town  clerk  to  the  registrars  of  voters,  who  are  to  "open 
the  envelopes,  recount  the  ballots  and  determine  the  questions 
raised."  These  sections,  which  are  the  only  ones  providing  for 
a  recount  of  votes  after  an  election  of  town  officers,  are  appli- 
cable only  to  those  cases  where  the  statute  requires  the  ballots 
"to  be  publicly  enclosed  in  an  envelope  and  sealed  up  with  the 
seal  provided  for  the  purpose."  It  follows  that,  except  in  towns 
where  the  official  ballot  is  used,  or  where  the  officers  above 
mentioned  are  "voted  for  on  one  ballot"  no  recount  of  votes 
can  be  had  after  the  result  of  the  election  has  been  announced 
and  recorded  and  the  meeting  has  been  adjourned.  This  view 
is  strengthened  by  reference  to  similar  provisions  of  earlier 
statutes.  St.  1886,  c.  262,  sec.  2;  St.  1886,  c.  264,  sec.  11; 
St.  1890,  c.  423,  sees.  97,  226;  St.  1893,  c.  417,  sees.  174,  208, 
276.  It  therefore  becomes  unnecessary  to  consider  the  other 
alleged  defects  in  the  proceedings  on  which  the  recount  was 
founded,  some  of  which  appear  to  be  important. 

As  the  registrars  of  voters  had  no  jurisdiction  to  recount  the 
votes,  the  result  of  their  action  cannot  be  considered,  and  the 
election  declared  by  the  voters  in  town  meeting  is  valid. 

Peremptory  writ  of  mandamus  to  issue. 


132  MASSACHUSETTS  ELECTION  CASES  —  1907. 


SUPREME   JUDICIAL  COURT. 

Isaac  S.  Brewster  v.  Charles  H.  Sherman  and  Others. 

(Reported  in  195  Mass.  222.) 

Plymouth,  April  2,  1907  —  April  16,  1907.    Present,  Knowlton,  C.J.,  Mor- 
ton, Loring,  Sheldon  and  Rugg,  JJ. 

Mandamus.  Elections.  License.  Voter.  —  A  voter  and  taxpayer  of  a  town  is  a 
proper  party  to  maintain  a  petition  for  a  writ  of  mandamus  ordering  the  board  of 
registrars  of  voters  of  the  town  not  to  count  an  imperfectly  marked  ballot  on  a  re- 
count of  a  vote  of  the  town  on  the  question  whether  licenses  shall  be  granted  for  the 
sale  of  intoxicatiug  liquors  in  the  town. 

A  writ  of  mandamus  is  the  proper  remedy  to  prevent  the  board  of  registrars  of 
voters  of  a  town  from  counting  an  imperfectly  marked  ballot  on  a  recount  of  a 
vote  of  the  town  on  the  question  whether  licenses  shall  be  granted  for  the  sale  of 
intoxicating  liquors  in  the  town. 

Where  a  voter  at  an  annual  election  of  a  town,  who  has  made  a  cross  in  each  of 
the  squares  opposite  the  names  of  the  officers  for  whom  he  voted,  makes  in  the 
square  at  the  right  of  the  word  "Yes,"  following  the  question  "Shall  licenses  be 
granted  for  the  sale  of  intoxicating  liquors  in  this  town?"  a  diagnonal  mark  and 
nothing  more,  this  warrants  a  finding  that  the  voter's  choice  cannot  be  determined 
and  that  the  ballot  should  not  be  counted  on  this  question. 

Petition,  filed  on  March  13,  1907,  by  a  voter  and  taxpayer  of 
the  town  of  Plymouth  for  a  writ  of  mandamus  directed  to  the 
board  of  registrars  of  voters  in  that  town  and  the  town  clerk, 
ordering  the  board  not  to  count  a  certain  defective  ballot 
described  in  the  opinion  and  to  make  and  file  with  the  town 
clerk  a  new  and  amended  certificate  of  a  recount  of  votes  made 
by  them  as  described  in  the  opinion,  and  ordering  the  town 
clerk  to  amend  the  record  of  the  meeting  accordingly. 

The  case  was  heard  by  Braley,  J.,  who  found  the  facts  which 
are  stated  in  the  opinion.  He  ordered  that  a  peremptory  writ  of 
mandamus  issue  in  accordance  with  the  prayer  of  the  petition, 
and  at  the  request  of  the  respondents  reported  the  case  for 
determination  by  the  full  court.  If  the  order  was  right  it  was  to 
be  affirmed;  otherwise,  such  order  was  to  be  made  as  law  and 
justice  might  require. 

The  case  was  submitted  on  briefs. 

C.  S.  Davis  for  the  respondents. 

W.  H.  Osborne  and  M.  Collingwood  for  the  petitioner. 

Knowlton,  C.J.  At  the  last  annual  election  in  the  town  of 
Plymouth,    the    votes    upon    the    question,    "Shall    licenses    be 


BREWSTER  V.   SHERMAN.      SUP.  JUD.   CT.,    1907.  133 

granted  for  the  sale  of  intoxicating  liquors  in  this  town?"  were 
counted  by  the  tellers,  who  reported  that  six  hundred  and 
thirty-six  ballots  had  been  cast  in  the  affirmative,  and  six 
hundred  and  thirty-seven  in  the  negative,  and  that  there  were 
thirty-eight  blank  ballots.  Two  days  later  a  petition  for  a  re- 
count of  these  ballots  was  filed  with  the  town  clerk,  and,  ac- 
cordingly, the  registrars  of  voters,  who  are  the  respondents  in 
this  suit,  recounted  them.  In  their  certificate  they  declared 
and  certified  the  vote  on  this  question  to  be  six  hundred  and 
thirty-eight  ballots  in  the  affirmative,  six  hundred  and  thirty- 
seven  in  the  negative,  and  thirty-six  blank  ballots.  It  appears 
that,  among  the  ballots  counted  as  affirmative,  there  is  one  that 
shows,  in  the  square  opposite  to  the  word  "Yes,"  which  follows 
the  question,  a  diagonal  mark,  and  nothing  more.  In  this 
ballot  it  appears  that,  in  voting  for  town  officers,  the  voter 
made  a  cross  in  the  squares  opposite  the  names  of  the  officers 
for  whom  he  voted,  showing  that  he  was  of  sufficient  intelligence 
clearly  and  legally  to  indicate  his  choice. 

This  is  a  petition  for  a  writ  of  mandamus  to  compel  the 
registrars  of  voters  not  to  count  this  ballot,  and  to  make  and  file 
with  the  town  clerk  a  new  and  amended  certificate  of  the  re- 
count of  ballots,  in  which  it  shall  be  stated  that  the  total 
number  of  votes  in  the  affirmative  on  said  question  was  six 
hundred  and  thirty-seven,  and  the  total  number  of  votes  in  the 
negative  was  six  hundred  and  thirty-seven,  and  that  the  number 
of  blank  ballots  was  thirty-seven. 

The  petitioner  is  a  voter  and  taxpayer  of  the  town,  and  the 
first  question  raised  is  whether  he  is  a  proper  party  to  invoke  a 
remedy  of  this  kind.  It  is  contended  that,  to  maintain  a  petition 
for  a  writ  of  mandamus,  he  should  have  a  private  right  or 
interest  in  the  matter,  beyond  the  right  and  interest  of  all  the 
citizens  of  the  town.  The  proposition  contended  for  has  some- 
times been  stated  as  the  rule,  and  it  is  correct  in  its  application 
to  some  cases.  See  Wellington,  Petitioner,  16  Pick.  87,  105; 
Pearsons  v.  Ranlett,  110  Mass.  118,  126.  The  general  doctrine  is 
stated  in  High,  Ex.  Leg.  Rem.  (3d  ed.)  sec.  431,  as  follows: 
"  When  the  question  is  one  of  public  right  and  the  object  of  the 
mandamus  is  to  procure  the  enforcement  of  a  public  duty,  the 
people  are  regarded  as  the  real  party  in  interest,  and  the  relator 
at  whose  instigation  the  proceedings  are  instituted  need  not 
show  that  he  has  any  legal  or  special  interest  in  the  result,  it 
being  sufficient  to  show  that  he  is  a  citizen  and  as  such  in- 
terested  in    the    execution    of    the   laws."      In    support    of    this 


134  MASSACHUSETTS  ELECTION  CASES  —  1907. 

proposition  he  cites  cases  from  many  States,  although  decisions 
from  four  States  are  cited  to  the  contrary.  This  is  the  rule 
applied  in  Union  Pacific  Railroad  v.  Hall,  91  U.  S.  343,  354, 
355,  and  as  shown  in  that  case,  it  prevails  also  in  England. 
See  The  King  v.  Secern  &  Wye  Railway,  2  B.  &  Aid.  646;  Rex 
v.  Westmoreland,  1  Wils.  138;  Rex  v.  Kent,  14  East,  395;  Rex 
v.  Cumberland,  1  M.  &  S.  190.  In  Attorney -General  v.  Boston, 
123  Mass.  460,  479,  Chief  Justice  Gray  says:  "There  is  a  great 
weight  of  American  authority  in  favor  of  the  doctrine  that  any 
private  person  may  move,  without  the  intervention  of  the 
Attorney-General,  for  a  writ  of  mandamus  to  enforce  a  public 
duty  not  due  to  the  government  as  such,"  and  he  intimates, 
without  deciding,  that  this  is  the  law  of  Massachusetts.  See 
Warren  v.  Mayor  &  Aldermen  of  Charlestown,  2  Gray,  84; 
Larcom  v.  Olin,  160  Mass.  102,  110.  Inasmuch  as  the  pro- 
ceedings are  instituted  under  our  statute  by  a  petition,  and  the 
trial  is  usually  had  upon  the  petition,  there  is  a  peculiar  reason 
why  the  general  rule  should  apply  in  this  Commonwealth. 
R.  L.  c.  192,  sec.  5.  In  regard  to  the  question  whether  licenses 
shall  be  granted  for  the  sale  of  intoxicating  liquors  in  Plymouth, 
no  private  right  is  involved,  as  distinguished  from  that  of  all 
the  inhabitants  of  the  town.  The  petitioner  is  a  proper  party 
to  sue  for  a  writ  of  mandamus. 

The  single  justice  was  unable  to  find  as  a  fact  that  the  diagonal 
mark  constituted  a  cross,  or  indicated  that  the  voter  intended  to 
vote  and  had  voted  "Yes"  upon  the  question  submitted.  He 
found  that  "the  voter  either  may  have  intended  to  vote  'Yes,' 
and  then  failed  to  complete  the  cross  necessary  to  express  his 
purpose,  or  he  may  have  begun  with  such  an  intention,  and  then 
concluded  not  to  do  so,  when,  instead  of  erasing  or  crossing  out 
the  mark  already  made,  he  left  it  as  it  appears."  Having 
found  that  the  ballot  was  defective,  and  improperly  counted,  he 
ordered  a  peremptory  writ  of  mandamus  to  issue,  and  reported 
the  questions  of  law  to  this  court. 

That  a  writ  of  mandamus  is  the  proper  remedy  in  a  case  of 
this  kind  was  decided,  after  full  consideration,  in  Flanders  v. 
Roberts,  182  Mass.  524.  See  also  Keough  v.  Holyoke,  156  Mass. 
403;  Wheeler  v.  Carter,  180  Mass.  382;  Blackmer  v.  Hildreth, 
181  Mass.  29;  O'Connell  v.  Mathews,  177  Mass.  518.  The 
R.  L.  c.  11,  sec.  421,  which  gives  the  courts  "jurisdiction  at  law 
or  in  equity  to  enforce  the  provisions  of  this  chapter,"  etc., 
includes  jurisdiction  in  the  Supreme  Judicial  Court  to  issue  a 
writ  of  mandamus  in  a  proper  case.     The  facts  and  the  appro- 


BREWSTER  V.    SHERMAN.      SUP.   JUD.    CT.,    1907.  135 

priate  remedy  in  Perry  v.  Hull,  180  Mass.  547,  relied  on  by  the 
respondents,  were  very  different  from  those  in  Flanders  v. 
Roberts,  and  from  those  in  the  present  case.  The  decision  in 
Perry  v.  Hull  was  simply  that  the  court  will  not  issue  a  writ  of 
mandamus  in  a  case  where  an  appropriate  and  effectual  remedy 
in  equity  is  given  by  the  statute.  In  a  case  like  the  present,  the 
remedy  in  equity  referred  to  in  the  statute  was  not  intended  to 
take  the  place  of  a  remedy  by  a  writ  of  mandamus,  and  it 
would  not  be  adequate. 

The  findings  of  the  judge  in  regard  to  the  ballot  were  well 
warranted.  The  manner  of  voting  in  a  case  of  this  kind  is  by 
the  voter's  "  making  a  cross  in  the  square  at  the  right  of  the 
answer  which  he  intends  to  give,"  as  prescribed  by  the  R.  L. 
c.  11,  sec.  227.  The  voter  failed  to  do  this.  His  intent  and  the 
reason  for  his  failure  to  express  it  are  left  to  mere  conjecture. 
The  difficulty  of  finding  an  intention  to  vote  in  a  particular  way, 
when  the  intention  is  not  expressed  as  prescribed  by  the  statute, 
is  pointed  out  in  Flanders  v.  Roberts,  182  Mass.  524,  and  in  the 
numerous  decisions  there  cited.  See  also  O'Connell  v.  Mathews, 
177  Mass.  518.  In  the  R.  L.  c.  11,  sec.  238,  it  is  expressly  pro- 
vided that  a  ballot  shall  not  be  counted  if  the  voter's  "choice 
cannot  be  determined."  There  was  no  error  of  law  in  the 
rulings  or  findings. 

Peremptory  writ  of  mandamus  to  issue. 


136  MASSACHUSETTS  ELECTION  CASES  —  1907. 


SUPREME   JUDICIAL  COURT. 

Malcolm  E.  Nichols  v.  Board  of  Election  Commissioners 
of  the  City  of  Boston. 

(Reported  in  196  Mass.  410.) 

Suffolk,    Oct.    29  — Oct.    30,    1907.     Present,  Knowlton,  C.J.,    Morton, 
Hammond,  Loring,  Sheldon,  Braley  and  Rttgg,  JJ. 

Elections.  Constitutional  Law.  Voting  Machine.  —  The  provisions  of  the  Con- 
stitution requiring  that  representatives  to  the  General  Court  shall  be  "chosen  by- 
written  votes,"  those  which  by  implication  require  that  other  State  officers  shall  be 
chosen  in  the  same  way,  and  those  in  regard  to  the  sorting  and  counting  of  votes  in 
such  elections  cannot  be  complied  with  by  the  use  of  a  voting  machine  which  does 
not  indicate  the  choice  of  the  voter  by  some  kind  of  writing  upon  a  paper  or  other 
material  thing  which  in  his  sight  shall  pass  from  his  control  to  that  of  the  officers 
charged  with  the  duty  of  conducting  the  election,  and  which  with  the  other  written 
votes  cast  in  the  election  shall  continue  to  be  the  same  material  things  capable  of 
being  handled,  sorted  and  counted. 

Knowlton,  C.J.  This  is  a  petition  for  a  writ  of  mandamus 
to  compel  the  board  of  election  commissioners  of  the  city  of 
Boston  to  provide  the  so-called  Australian  ballot  for  use  at  the 
next  election  in  Precinct  6  of  Ward  10  of  that  city  instead  of 
the  Dean  ballot  machine  which  they  have  voted  to  use.  The 
case  was  reserved  by  a  single  justice  for  determination  by  the 
full  court. 

It  appears  that  this  machine  has  been  approved  by  the 
Secretary  of  the  Commonwealth,  the  Treasurer  and  Receiver- 
General,  and  the  Auditor  of  Accounts,  under  the  provisions  of 
R.  L.  c.  11,  sec.  270,  and  regulations  for  the  use  of  it  have  been 
made  and  instructions  for  voters  have  been  prepared  by  the 
Secretary  of  the  Commonwealth  in  accordance  with  the  St.  of 
1905,  c.  313,  sec.  2. 

This  machine  is  a  mechanical  device  for  registering  votes.  In 
shape  it  is  like  a  box.  It  is  about  three  feet  in  height  and  two 
and  one-half  feet  square  upon  its  upper  surface.  It  is  used  as 
follows:  Immediately  before  the  opening  of  the  polls  it  is  in- 
spected by  the  election  officers.  There  are  certain  dials  on  the 
machine,  some  registering  the  number  of  votes  received  by  a 
candidate  for  office,  and  one  which  records  the  total  number  of 
voters  casting  ballots.  All  these  dials  are  set  at  zero.  The 
election  officers  see  that  a  steel  top  is  placed  directly  over  the 


NICHOLS  V.   ELECTION  COMMISSIONERS.      SUP.  JUD.  CT.,   1907.  137 

machine,  upon  which  top  is  pasted  the  official  list  of  candidates 
to  be  voted  for  and  questions  to  be  answered.  This  top  is  then 
locked  by  the  election  officers,  and  when  it  is  so  locked  it  is  im- 
possible for  any  voter  to  see  the  dials  which  register  the  number 
of  votes  cast  for  the  respective  candidates,  and  all  that  the  voter 
can  see  is  the  names  of  the  various  candidates  and  the  language 
of  the  questions,  and  such  other  information  in  reference  to  the 
candidates  as  is  required  by  law  to  be  upon  the  ballot.  As  each 
voter  gives  his  name  when  about  to  vote,  he  steps  under  a  cur- 
tain connected  with  the  machine,  which  curtain  conceals  the 
face  of  the  machine  and  all  of  the  mechanical  device  used  for 
registering  votes  from  the  sight  of  the  election  officers.  The 
voter  sees  upon  the  face  of  the  machine  only  the  names  and 
information  above  mentioned,  and  a  number  against  the  name 
of  each  candidate.  There  is  a  blank  space  to  the  right  of  the 
number,  and  a  key  to  the  right  of  the  number,  and  a  key  to 
the  right  of  the  blank  space,  about  one-fourth  of  an  inch  square. 
The  voter  pushes  down  the  key  to  the  right  of  the  name  of 
each  candidate  for  whom  he  desires  to  vote.  The  pushing  down 
of  the  key  causes  a  cross  to  be  exposed  in  the  blank  space 
between  the  number  and  the  key,  but  none  of  the  dials  register- 
ing votes  is  moved  in  consequence  of  the  pressing  down  of  the 
key.  After  he  has  marked  a  cross  in  this  way  against  the  name 
of  each  candidate  for  whom  he  desires  to  vote,  he  throws  a 
lever,  called  the  operating  lever,  from  right  to  left,  before  which 
act  he  may  change  his  cross  from  one  candidate  to  another. 
This  lever  is  attached  to  the  machine,  and  the  moving  of  it 
from  right  to  left,  and  this  alone,  causes  a  dial  connected  with 
the  name  of  each  candidate  so  crossed  to  move,  thereby  register- 
ing a  vote  for  each  candidate  whose  name  is  crossed.  The 
movement  of  this  dial  cannot  be  seen  by  the  voter  or  by  any 
one  else.  After  the  polls  are  closed,  the  election  officers  unlock 
the  top  on  which  the  official  list  of  candidates  and  questions  is 
pasted,  and  read  the  dials,  and  make  official  returns  of  the  votes 
cast  for  each  of  the  respective  candidates  and  questions  in 
accordance  with  the  figures  shown  upon  the  dial. 

The  petitioner  contends  that  the  use  of  this  machine  as 
proposed  would  be  illegal,  and  a  violation  of  the  provision  of  the 
Constitution  of  the  Commonwealth,  chapter  1,  section  III, 
Article  III,  which  provides  that  representatives  to  the  General 
Court  shall  be  "chosen  by  written  votes,"  and  of  other  pro- 
visions of  the  Constitution,  which  by  implication  require  that 
other  State  officers  shall  be  chosen  in  the  same  way.     See  Const. 


138  MASSACHUSETTS  ELECTION  CASES  —  1907. 

Mass.  c.  2,  sec.  I  Art.  Ill;  c.  1,  sec.  II,  Art.  II;  c.  2,  sec.  I, 
Art.  X;  Amendments  to  the  Constitution,  Arts.  16,  17.  In 
chapter  2,  section  I,  Article  III,  cited  above,  it  is  made  the  duty 
of  the  town  clerk,  in  the  presence  of  the  selectmen  of  towns  who 
conduct  the  election,  to  "sort  and  count  the  votes,"  "form  a 
list  of  the  persons  voted  for,  with  the  number  of  votes  for  each 
person  against  his  name",  and  to  "make  a  fair  record  of  the 
same,"  and  a  "public  declaration  thereof;"  and  there  are  other 
similar  provisions. 

The  constitutional  question  thus  raised  was  considered  in  the 
different  answers  given  to  questions  submitted  by  the  House  of 
Representatives  which  appear  in  the  Opinions  of  the  Justices, 
178  Mass.  605,  609,  611. 

This  question  may  be  answered  affirmatively  or  negatively, 
according  to  the  degree  of  strictness  with  which  we  interpret  the 
language  of  the  Constitution. 

If  a  choice  by  written  votes  is  to  be  limited  as  to  details  to 
the  particular  method  or  methods  which  the  framers  of  the 
Constitution  had  in  mind  more  than  one  hundred  years  ago,  it  is 
plain  that  the  use  of  this  machine  is  not  permissible.  If  we  look 
at  the  object  of  the  constitutional  requirement,  there  is  ground 
for  an  argument  that  it  may  be  accomplished  by  the  use  of  this 
machine,  and  that,  in  a  broad  and  liberal  application  of  the 
provisions  of  the  Constitution  to  the  present  conditions  and 
possible  methods  of  voting,  the  use  of  this  machine  at  an  election 
should  be  deemed  a  choice  "by  written  votes."  It  may  be 
argued  that  the  making  of  a  material  record  of  his  act  by  each 
voter,  and  thereby  securing  for  it  greater  certainty  and  per- 
manence than  would  result  from  a  show  of  hands,  or  a  declara- 
tion viva  voce,  is  accomplished  by  the  use  of  the  machine  as  well 
as  by  a  paper  vote  written  by  the  hand  of  the  voter  and  de- 
posited in  a  box.  The  secrecy  of  the  ballot  is  even  more  effec- 
tively secured  by  the  machine  than  by  the  method  practiced  one 
hundred  years  ago.  It  might  be  contended  that,  when  the  voter 
has  pressed  down  the  key  before  the  name  of  each  of  his  can- 
didates, he  has  before  him  his  vote  upon  which  his  choice  is 
designated  by  the  crosses  opposite  the  names,  and  that  his 
movement  of  the  lever  which  makes  the  record  upon  the  dials 
below  does  not  differ  in  effect  from  a  movement  of  his  hand  in 
throwing  a  piece  of  paper  into  a  box,  and  that  the  numerical 
adjustments  and  uncertainty  that  intervene  between  his  act  and 
the  entry  of  the  result  by  the  election  officers  are  no  greater  in 
the  one  case  than  in  the  other.     Some  of  the  justices,  including 


NICHOLS  V.  ELECTION  COMMISSIONERS.      SUP.  JUD.   CT.,   1907.  139 

the  writer  of  this  opinion,  would  prefer  to  decide  that  this 
method  of  voting  is  within  the  meaning  of  the  constitutional 
provision.  But  the  method  in  detail  is  entirely  unlike  the 
writing  of  a  name  of  chosen  candidates  upon  a  piece  of  paper, 
and  the  deposit  of  the  paper  in  a  box,  to  be  afterwards  taken 
out  and  counted.  In  the  use  of  the  machine  the  voter  must  trust 
everything  to  the  perfection  of  the  mechanism.  .  He  cannot  see 
whether  it  is  working  properly  or  not.  This  chance  of  error, 
whether  greater  or  less  than  the  chance  that  a  ballot  deposited 
in  a  box  will  not  be  properly  counted,  is  very  different  from  it. 
It  was  not  within  the  knowledge  or  contemplation  of  the  framers 
of  the  Constitution. 

In  one  of  the  opinions  already  referred  to  signed  by  three  of 
the  justices  (178  Mass.  616)  this  language  was  used:  — 

"Interpreting  the  Constitution  in  the  light  of  the  circumstances 
existing  at  the  time  of  its  adoption,  as  well  as  of  the  laws  and 
customs  which  had  theretofore  prevailed,  we  think  that  the 
language  prescribing  the  way  in  which  the  will  of  the  voters 
shall  be  expressed  and  ascertained  in  the  case  of  the  election  of 
Governor  and  of  the  other  State  officers,  where  similar  language 
is  used,  necessarily  implies  at  least  that  the  choice  of  the  voter 
shall  be  indicated  by  some  kind  of  writing  upon  a  paper  or  other 
material  thing;  that  this  material  thing  bearing  this  written 
expression  of  the  choice  of  the  voter  shall  by  this  act  of  voting 
pass  from  his  possession  and  control  into  that  of  the  officers 
charged  with  the  duty  of  conducting  the  election,  and  that  the 
voter  shall  have  reasonable  opportunity  to  see  that  it  has  so 
passed;  that  it  shall  be  distinct  from  that  handed  in  by  any 
other  voter,  and  that  these  written  votes  so  handed  in  shall 
continue  to  be  the  same  material  things,  capable  of  being 
handled,  sorted  and  counted;  and  that  the  whole  work  of  as- 
certaining and  declaring  the  result  shall  be  the  personal  act  of 
these  election  officers,  with  the  written  votes  before  them,  the 
sorting  and  counting  as  well  as  the  declaration  of  the  result 
being  done  by  sworn  officers.  One  reason  for  the  requirement 
of  a  written  vote  is  that  the  voter  may  have  a  reasonable 
opportunity  of  making  his  choice  without  immediate  influence 
upon  the  part  of  others,  and  that  the  reason  for  the  requirements 
applicable  to  the  sorting  and  counting  is  that  the  votes  may  not 
fail  of  their  proper  force  by  reason  of  mistake  or  fraud  in  the 
count.  The  safeguard  erected  by  the  Constitution  is  that 
there  shall  remain  after  the  closing  of  the  voting,  in  a  material 
form,  capable  of  being  read  and  understood  by  men,  a  written 


140  MASSACHUSETTS  ELECTION  CASES  —  1907. 

vote  cast  by  each  voter,  and  that  all  these  individual  votes, 
each  given  by  the  voter  to  the  election  officers,  shall  be  read, 
sorted  and  counted  in  accordance  with  the  several  tenor  of  each, 
by  men  acting  under  the  sanction  and  obligation  of  their  respec- 
tive official  oaths." 

There  is  no  doubt  that,  in  reference  to  the  only  conditions  and 
methods  which  they  then  knew  or  thought  possible,  this  is  a  fair 
statement  of  what  was  in  the  contemplation  of  the  framers  of 
the  Constitution.  To  a  majority  of  the  court,  the  adoption  and 
use  of  a  machine  which  employs  none  of  these  methods,  and 
whose  working  and  whose  record  of  the  results  is  invisible  to 
the  voter,  seem  so  great  a  departure  from  the  method  referred 
to  in  the  language  of  the  Constitution  as  not  to  be  included 
within  its  broadest  meaning.  Even  if  the  principal  objects  to 
be  accomplished  by  the  constitutional  requirement  would  be 
accomplished  as  well  by  the  use  of  the  machine,  it  seems  too 
great  a  stretch  of  language  to  say  that  the  use  of  it  is  the  ex- 
pression of  a  choice  by  a  written  vote.  In  the  opinion  from 
which  we  have  already  quoted  there  is  also  this  language:  — 

"The  turn  of  a  wheel  or  a  dial,  the  punching  of  a  hole  in  an 
unseen  roll  of  paper  on  which  are  the  names  of  candidates  by  a 
voter  who  pulls  a  lever  or  turns  a  key,  is  not  the  use  of  a  written 
vote  within  the  meaning  of  the  Constitution;  nor  is  the  inspec- 
tion of  a  dial,  even  if  preceded  or  followed  by  an  inspection  of 
all  the  cogs  and  mechanism  which  have  moved  the  hands  of  the 
dial,  or  the  counting  of  holes  in  such  a  paper  and  the  inspection 
of  the  machinery  which  made  the  holes,  the  sorting  and  counting 
of  votes  by  election  officers.  If  it  be  said  that  these  are  the  best 
and  most  efficient  means  to  secure  a  free  and  honest  election, 
the  answer  is  that  they  are  not  the  means  prescribed  for  those 
ends  by  the  Constitution.  The  Constitution  does  not  authorize 
the  General  Court  to  put  the  expression  of  the  voter's  will  to 
the  chance  of  being  nullified  or  perverted  by  slipping  cogs, 
defective  levers  or  other  mechanical  devices  which  have  no 
living  intelligence,  no  conscience  and  no  liability  to  punishment 
to  insure  their  going  right.  It  requires  that  every  step  in  the 
task  of  seeing  that  votes,  whether  given  by  Indian  corn  and 
beans  or  other  ballots,  by  show  of  hands,  by  the  living  voice 
or  by  paper  writing,  are  counted  rightly,  shall  be  intrusted  to 
and  performed,  not  by  an  inanimate  machine,  but  by  sworn 
officers,  and  in  open  meeting,  where  each  step  of  the  work  can 
be  verified  and  mistakes  corrected." 

Decisions  in   other   States    that  bear  upon    this   question  are 


NICHOLS  V.  ELECTION  COMMISSIONED.      SUP.  JUD.   CT.,   1907.  141 

under  constitutional  provisions  differing  somewhat  from  our 
own,  and  we  do  not  deem  them  conclusive.  In  re  Voting 
Machine,  19  Rf  I.  729;  Elwell  v.  Comstock,  99  Minn.  261; 
Lynch  v.  Malley,  215  111.  574;  Detroit  v.  Inspectors  of  Elections, 
139  Mich.  548.  In  the  opinion  of  a  majority  of  the  court  the 
statute  under  which  the  respondents  are  acting  is  unconsti- 
tutional. 

Peremptory  writ  of  mandamus  to  be  issued. 

The  case  was  submitted  on  briefs  at  the  sitting  of  the  court 
in  October,  1907,  and  afterwards  was  submitted  on  briefs  to  all 
the  justices. 

J.  H.  Vahey,  C.  H.  Innes  and  T.  F.  Vahey  for  the  petitioner. 
T.  M.  Babson  for  the  respondents. 


142  MASSACHUSETTS  ELECTION  CASES  —  1908. 


supreme  judicial  court. 

Attorney-General  v.  Hugh  McOsker. 
Attorney-General  v.  Frank  K.  Stearns. 

(Reported  in  198  Mass.  340.) 

Middlesex,   March  23,    1908  —  April  3,    1908.     Present,   Knowlton,   C.J., 
Hammond,  Loring  and  Sheldon,  JJ. 

Elections.  —  Words  "Two  Leading  Political  Parties"  denned.  —  The  State  con- 
vention of  the  Democratic  party,  held  in  the  autumn  of  1907  for  the  purpose  of 
placing  in  nomination  candidates  for  State  officers  to  be  voted  for  at  the  next  annual 
election,  divided  into  two  factions,  one  of  which  nominated  one  B.  for  Governor, 
while  the  other  nominated  one  W.  Each  faction  claimed  the  party  designation 
and,  under  St.  1907,  c  560,  sees.  171,  175,  176,  filed  with  the  Secretary  of  the  Com- 
monwealth a  ticket  designated  "Democratic,"  and,  each  objecting  to  the  ticket 
filed  by  the  other,  the  dispute  was  referred,  under  section  179  of  that  statute,  to  the 
State  Ballot  Law  Commission.  It  becoming  apparent  that  the  decision  of  the  com- 
mission would  be  so  delayed  that,  after  its  rendition,  the  defeated  faction  would  be 
unable  to  file  nomination  papers  under  section  177,  both  factions  filed  such  papers, 
each  placing  in  nomination  the  persons  upon  the  ticket  nominated  by  its  conven- 
tion. The  nomination  paper  containing  W.  as  a  candidate  for  Governor  was  desig- 
nated "Democratic  citizens."  After  the  time  within  which  nomination  papers  must 
be  filed  under  section  177,  and  the  time  within  which  they  might  be  withdrawn 
under  section  180,  the  commission  decided  that  the  ticket  headed  by  W.  as  a  can- 
didate for  Governor  was  entitled  to  the  designation  "Democratic."  On  the  ballot 
at  the  State  election,  W.  therefore  appeared  as  a  candidate  for  Governor  under  the 
designations  "Democratic"  and  "Democratic  citizens,  nomination  paper."  At 
that  election  a  candidate  designated  "Republican"  received  the  highest  number 
of  votes,  and  a  candidate  designated  "Independence  League"  received  more  votes 
than  were  cast  for  W.  under  the  designation  "Democratic,"  but  less  than  the  total 
number  cast  for  W.  under  both  the  designation  "Democratic"  and  "Democratic 
citizens."  A  member  of  the  party  designated  "Democratic,"  as  representative  of 
one  of  the  two  leading  political  parties,  was  appointed  a  member  of  the  board  of 
registrars  of  voters  of  a  city  under  section  27  of  the  statute  mentioned  above,  which 
provides  that  such  members  shall  be  so  appointed  that  they  shall  represent,  as 
equally  as  may  be,  the  "two  leading  political  parties,"  and  an  information  by  the 
Attorney-General,  at  the  relation  of  members  of  the  party  designated  "Independ- 
ence League,"  in  the  nature  of  a  quo  warranto,  was  filed  to  try  the  title  of  the  ap- 
pointee to  his  office.  Held,  that  under  the  circumstances  the  votes  cast  for  W.  under 
the  designation  "Democratic  citizens,  nomination  paper,"  were  votes  belonging  to 
the  party  designated  "Democratic,"  and  therefore  that  the  respondent  was  en- 
titled to  his  office,  since  he  was  a  member  of  the  "Democratic"  party,  which  was 
one  of  the  "two  leading  political  parties"  under  section  1  of  the  statute. 

Two  informations,  filed  on  Jan.  24,  1908,  in  the  Supreme 
Judicial  Court  for  the  county  of  Middlesex,  by  the  Attorney- 
General  at  the  relation  of  two  citizens  and  legal  voters  of  Lowell, 
members    of    a    political    party    known    and    designated    as    the 


ATTORNEY-GENERAL  V.   McOSKER.      SUP.   JUD.    CT.,    1908.  143 

Independence  League,  to  try  the  title  of  the  defendants,  re- 
spectively, to  the  office  of  a  member  of  the  board  of  registrars 
and  to  the  office  of  a  member  of  the  board  of  police  of  that 
city. 

There  was  a  hearing  before  Morton,  J.,  who  reserved  the 
cases  for  the  consideration  of  the  full  court. 

The  facts  are  stated  in  the  opinion. 

//.  Parker  (J.  T.  Aurenbach  and  R.  Walcott  with  him)  for  the 
Attorney-General. 

J.  G.  Hill  for  the  defendants. 

Knowlton,  C.J.  These  are  two  informations  in  the  nature  of 
a  quo  warranto,  to  try  the  title  of  Hugh  C.  McOsker  to  the  office 
of  a  member  of  the  board  of  registrars  of  voters  of  the  city  of 
Lowell,  and  the  title  of  Frank  K.  Stearns  to  the  office  of  a 
member  of  the  board  of  police  of  that  city.  Each  of  the  statutes 
under  which  the  appointments  of  the  defendants  were  made, 
respectively,  requires  that  the  members  of  the  board  shall,  as 
equally  as  may  be,  represent  the  two  leading  political  parties 
at  the  preceding  State  election.  R.  L.  c.  100,  sec.  3;  St.  1907, 
c.  560,  sec.  27.  In  making  these  appointments  the  mayor 
decided  that  the  Democratic  party  is  one  of  the  two  leading 
political  parties,  determined  by  the  result  of  the  State  election 
in  1907.  There  is  no  dispute  that  the  Republican  party  is  one 
of  them.  But  the  informant  contends  that  the  Independence 
League,  and  not  the  Democratic  party,  is  the  other. 

In  framing  these  statutes  the  Legislature  undoubtedly  meant, 
by  two  leading  political  parties,  the  two  parties  in  point  of 
numbers.  As  a  convenient  way  of  determining  numerical 
superiority  they  made  this  enactment:  '"Two  leading  political 
parties,'  shall  apply  to  the  political  parties  which  cast  the 
highest  and  next  highest  number  of  votes  for  governor  at  the 
preceding  annual  election."     St.  1907,  c.  560,  sec.  1. 

It  is  agreed  that  at  the  State  election  in  November,  1907, 
the  following  persons  received  the  following  number  of  votes 
for  the  office  of  Governor,  with  the  designations  set  against 
their  names:  — 

Votes. 

Curtis  Guild,  Jr.,  of  Boston  (Republican) 188,068 

Thomas  L.  Hisgen  of  West  Springfield  (Independence  League)           .  75,489 

Henry  M.  Whitney  of  Brookline  (Democratic)  ....  70,842 
Henry  M.  Whitney  of  Brookline  (Democratic  citizens,  nomination 

paper) 6,691 


144 


MASSACHUSETTS  ELECTION  CASES 


1908. 


Henry  M.  Whitney  of  Brookline  (Independent  citizen) 
Henry  M.  Whitney  of  Brookline  (No  designation) 
Charles  W.  Bartlett  of  Newton  (Anti-merger) 
John  W.  Brown  of  Worcester  (Socialist) 
Hervey  S.  Cowell  of  Ashburnham  (Prohibition) 
Thomas  F.  Brennan  of  Salem  (Socialist  labor) 
All  others    ....... 


Votes. 

5,154 
1,692 
11,194 
7,621 
3,810 
2,999 
135 


It  appears  that  Mr.  Hisgen,  the  candidate  of  the  Independence 
League,  received  a  larger  number  of  votes  than  Mr.  Whitney 
received  under  the  party  designation  "  Democratic,"  and  that 
Mr.  Whitney,  under  different  designations,  received  a  larger 
number  than  Mr.  Hisgen. 

In  view  of  these  returns  and  the  other  facts,  and  the  pro- 
visions of  the  statute,  we  are  to  determine  which  of  the  parties 
represented  by  these  two  candidates  is  one  of  the  two  leading 
political  parties.  It  is  agreed  as  a  fact,  if  it  is  competent  and 
material,  which  the  informant  denies,  that  the  independence 
league  has  never,  in  this  Commonwealth,  elected  a  candidate 
nominated  by  it  for  an  office  to  be  filled  by  vote  of  all  the 
voters  of  the  Commonwealth;  nor  has  any  candidate  nominated 
by  it  been  elected  to  the  General  Court.  It  is  also  agreed  that 
in  the  city  of  Lowell  there  are  not  more  than  thirty  voters 
enrolled  under  the  provisions  of  the  caucus  act,  as  members  of 
the  Independence  League,  while  there  are  two  hundred  and 
sixteen  principal  election  officers  and  the  same  number  of 
deputies  for  each  election  in  said  city.  While  such  facts  as 
how  many  voters  are  enrolled  in  the  membership  of  either  of 
these  parties  in  a  particular  city  may  not  be  material,  we  are 
of  opinion  that  in  the  consideration  of  this  statute  in  reference 
to  peculiar  conditions  not  provided  for  in  it,  we  may  take  into 
account  facts  of  common  knowledge  in  regard  to  the  political 
parties  of  the  State,  and  inquire  which  of  two  possible  con- 
structions of  the  statute  would  be  the  more  likely  to  reach  the 
result  intended  by  the  Legislature. 

It  is  agreed  that  in  1907  there  was  a  sharp  contest  in  the 
Democratic  party  for  the  nomination  of  Governor.  The  party 
included  two  contending  factions  which  divided  in  the  State 
convention,  organized  separately  and  chose  two  sets  of  candidates 
for  officers  of  the  State.  Each  organization  professed  to  repre- 
sent the  Democratic  party,  and  filed  a  list  of  its  candidates 
with  the  Secretary  of  the  Commonwealth,  and  demanded  a 
place  for  them  on  the  official  ballot  as  candidates  of  the  Demo- 


ATTORNEY-GENERAL  V.   McOSKER.      SUP.    JUD.    CT.,  1908.  145 

cratic  party.  Each  faction  objected  to  the  certificate  of  nomi- 
nations of  the  other,  and  the  matter  in  dispute  was  referred  to 
the  Ballot  Law  Commission,  under  the  St.  1907,  c.  560.  It 
being  apparent  that  the  hearing  would  occupy  considerable 
time,  and  that  the  result  was  uncertain,  a  nomination  paper 
was  filed  with  the  Secretary  of  the  Commonwealth  on  Oct.  14, 
1907,  putting  in  nomination  as  State  officers,  under  the  desig- 
nation "  Democratic  citizens,"  Mr.  Whitney  and  others,  who 
were  the  same  persons  that  were  nominated  by  his  supporters 
at  the  State  convention,  except  one  who  had  withdrawn  his 
name  from  nomination.  On  the  same  day  nomination  papers 
were  filed  for  the  officers  of  the  other  faction  of  the  Democratic 
party,  and  another  nomination  paper  was  filed  for  Mr.  Whitney 
for  the  office  of  Governor,  under  the  designation  "Independent 
citizen."  October  14  was  the  last  day  for  filing  nomination 
papers  under  the  law,  and  October  17  was  the  last  day  for 
withdrawing  names  from  nomination.  The  Ballot  Law  Com- 
mission were  unable  to  reach  a  decision  of  the  questions  before 
them  until  October  18,  when  they  filed  their  decree  that  the 
certificate  containing  the  name  of  Mr.  Whitney  represented  the 
action  of  the  Democratic  party,  and  that  the  names  on  it  should 
go  upon  the  official  ballot  as  the  candidates  of  that  party.  It 
was  then  too  late  to  withdraw  the  nominations  made  by  the 
nomination  papers. 

The  question  of  law  is  presented,  whether  under  facts  like 
these,  in  determining  the  highest  number  of  votes  for  Governor 
cast  by  a  political  party  at  the  State  election,  the  number  cast 
under  the  designation  of  that  party  on  the  ballot  shall  be  con- 
clusive of  the  whole  subject,  so  as  to  exclude  all  consideration 
of  other  facts  or  evidence.  We  are  of  opinion  that  the  rule 
contended  for  by  the  informant  is  too  strict  in  this  particular. 
The  inference  is  very  strong  that  the  persons  who  filed  the 
nomination  paper  containing  the  name  of  Mr.  Whitney  and 
his  associates  as  they  afterward  appeared  on  the  official  ballot, 
except  one  who  had  withdrawn  his  name  from  nomination, 
were  members  and  supporters  of  that  part  of  the  Democratic 
party  whose  nominations  were  accepted  by  the  Ballot  Com- 
missioners. This  paper  was  filed  in  the  interest  of  that  part  of 
the  party.  The  political  opinion  or  preference  indicated  by  the 
designation  selected  was  no  other  than  Democratic.  By  reason 
of  the  use  of  the  word  "Democratic,"  followed  by  "citizens/" 
it  was  necessary  to  add  the  words,  "nomination  papers."  St. 
1907,   c.   560,   sec.   230.      The  requirement  of  this  section,   that 


146  MASSACHUSETTS  ELECTION  CASES  —  1908. 

when  the  name  of  a  political  party  is  used  in  connection  with 
some  other  term  as  the  designation  of  a  candidate  nominated 
by  a  nomination  paper,  the  words  "nomination  paper"  shall 
be  added  to  such  political  designation,  is  for  the  purpose  of 
showing  which  candidates,  belonging  to  the  party,  are  regularly 
nominated  and  which  are  nominated  by  individuals.  It  recog- 
nizes the  affiliation  of  both  with  the  party,  and  implies  that 
when  the  same  person  is  the  nominee  in  both  forms,  all  the 
votes  cast  for  him  may  be  treated  as  belonging  to  the  same 
party. 

This  designation  was  not  the  name  of  any  other  existing 
political  party  as  defined  in  the  St.  1907,  c.  560,  sec.  1.  There 
was,  therefore,  no  occasion  to  decline  to  count  the  voters  as 
belonging  to  the  Democratic  party,  on  the  ground  that  they 
represented  another  party  whose  rights  were  to  be  protected.  If 
hereafter  there  should  be  a  use  of  the  same  designation,  with  a 
view  on  the  part  of  anybody  to  acquire  a  position  as  a  political 
party,  future  conditions  may  be  considered  and  different  ques- 
tions may  arise.  But  we  are  of  opinion  that  a  designation 
adopted  as  this  was,  for  the  purpose  which  is  manifest,  does  not 
preclude  the  court  from  finding  that  the  voters  under  it  should 
be  counted  as  belonging  to  the  Democratic  party.  There  seems 
little  doubt  that  this  nomination  was  as  truly  Democratic  as 
that  of  the  convention.  The  votes,  to  the  number  of  sixty- 
eight  hundred  and  forty-six,  which  were  cast  for  Mr.  Whitney 
under  the  designation  "Independent  citizen,"  and  under  no 
designation,  may  fairly  represent  his  supporters  who  were  not  of 
his  party. 

The  votes  cast  for  him  under  the  designation  "Democratic" 
and  "Democratic  citizen"  are  together  more  in  number  than 
those  cast  for  the  candidate  of  the  Independence  League,  and 
it  follows  that,  within  the  meaning  of  this  statute,  the  Demo- 
cratic party  is  one  of  the  two  leading  political  parties  in  the 
Commonwealth. 

The  other  questions  discussed  before  us  need  not  be  considered. 

Informations  dismisssd. 


COMMONWEALTH  V.   EDGERTON.      SUP.   JUD.    CT.,    1909.         147 


SUPREME   JUDICIAL  COURT. 

Commonwealth  v.  William  J.  Edgerton. 

(Reported  in  200  Mass.  318.) 

Bristol,  Oct.  26,  1908  —  Jan.  4,  1909.    Present,  Knowlton,  C.J.,  Morton, 
Sheldon  and  Rugg,  JJ. 

Evidence.  —  At  the  trial  of  an  indictment  under  St.  1907,  c.  560,  sec.  410,  against 
an  election  officer  for  willfully  performing  contrary  to  law  the  duties  imposed  upon 
him  by  section  270  of  the  same  chapter  in  making  a  false  count  of  votes  in  an  election 
and  knowingly  making  a  false  report  of  the  result  of  the  canvass  and  count  of  votes, 
the  official  tally  sheets  kept  by  the  defendant  in  the  counting  of  the  votes  are  com- 
petent and  are  the  best  evidence  to  show  what  the  count  kept  by  the  defendant  was. 

False  Count  in  Votes.  —  At  the  trial  of  an  indictment  under  St.  1907,  c.  560,  sec. 
410,  against  an  election  officer  for  willfully  performing  contrary  to  law  the  duties 
imposed  upon  him  by  section  270  of  the  same  chapter  in  making  a  false  count  of 
votes  in  an  election  and  knowingly  making  a  false  report  of  the  result  of  the  canvass 
and  count  of  votes,  the  testimony  of  bystanders,  who  observed  the  defendant's 
conduct  in  keeping  a  false  tally  of  the  votes,  is  admissible  to  show  the  facts  which 
they  observed  although  they  were  not  election  officers  and  were  interested  in  the 
election  only  as  citizens. 

Evidence.  — At  the  trial  of  an  indictment  under  St.  1907,  c.  560,  sec.  410,  against 
an  election  officer  for  willfully  performing  contrary  to  law  the  duties  imposed  upon 
him  by  section  270  of  the  same  chapter  in  making  a  false  count  of  votes  in  an  election 
and  knowingly  making  a  false  report  of  the  result  of  the  canvass  and  count  of  votes, 
the  Commonwealth,  against  the  objection  of  the  defendant,  introduced  the  testi- 
mony of  the  registrars  of  voters  to  show  that  upon  a  recount  by  them  it  appeared 
that  the  ballots  had  not  been  counted  and  reported  correctly,  and  the  jury  were 
allowed  to  inspect  the  sheets  used  by  the  registrars  at  the  recount  and  used  by  them 
in  testifying  to  refresh  their  recollections,  the  jury  being  instructed  that  those 
sheets  were  not  evidence  and  could  not  be  considered  by  them.  The  defendant 
contended  that  instead  of  this  testimony  the  ballots  themselves,  being  the  best 
evidence,  should  have  been  produced  for  the  jury  to  count.  Held,  that  assuming 
that  the  production  of  the  ballots  could  have  been  compelled,  which  was  doubted, 
there  being  no  question  raised  as  to  any  irregularities  appearing  on  the  face  of  the 
ballots,  the  number  of  the  ballots  cast  on  one  side  and  the  other  was  a  matter  of  com- 
putation, and  that  the  computation  could  be  testified  to  by  any  one  who  made  it, 
and  therefore  that  the  registrars,  refreshing  their  recollections  by  referring  to  the 
sheets  used  by  them  at  the  recount,  properly  could  testify  as  to  the  result  of  the 
recount  so  far  as  it  related  to  the  count  and  report  made  by  the  defendant,  and  that 
the  jury  properly  were  allowed  to  inspect  the  sheets  for  the  purpose  of  assisting 
them  in  passing  upon  the  credibility  of  the  registrars. 

Election  Officer.  —  At  the  trial  of  an  indictment  under  St.  1907,  c.  560,  sec.  410, 
against  an  election  officer  for  willfully  performing  contrary  to  law  the  duties  imposed 
upon  him  by  section  270  of  the  same  chapter  in  making  a  false  count  of  votes  upon 
the  question  of  the  granting  of  licenses  for  the  sale  of  intoxicating  liquors  in  a  city 
and  in  knowingly  making  a  false  report  of  the  result  of  the  canvass,  there  was  evi- 
dence that  the  defendant  made  marks  on  a  tally  sheet  as  another  election  officer 
called  off  the  answers  on  the  ballots,  for  the  purpose  of  keeping  an  account  of  the 
votes;  that  in  doing  so  he  marked  twenty-one  more  votes  for  license,  fifteen  less 
votes  against  license  and  six  less  blanks  than  the  other  election  officer  called  off  to 


148  MASSACHUSETTS  ELECTION  CASES  —  1909. 

him  and  than  afterwards  appeared  to  be  the  true  numbers  upon  a  recount  by  the 
registrars  of  voters;  and  also  that,  when  the  defendant  became  aware  that  two 
bystanders  were  following  the  count,  he  kept  tally  correctly.  There  was  other 
evidence  from  which  guilty  knowledge  on  the  part  of  the  defendant  could  have  been 
inferred.  It  further  appeared  that  the  defendant  and  the  election  officer  who  called 
off  the  answers  to  him  signed  the  tally  sheets  thus  marked  by  the  defendant,  and 
that  these  tally  sheets  were  delivered  to  and  received  by  those  charged  with  the 
duty  of  declaring  the  results  of  the  election  as  the  reports  of  the  results  of  the  votes 
counted  and  canvassed  by  the  defendant  and  the  other  election  officer  who  signed 
them.  Held,  that  there  was  evidence  for  the  jury  that  the  defendant  willfully  made  a 
false  count  and  knowingly  made  a  false  report  of  the  canvass  of  votes;  that  the 
count  and  canvass  by  the  defendant  and  the  election  officer  who  called  off  the  an- 
swers were  none  the  less  a  count  and  canvass  by  the  defendant  because  he  merely 
marked  the  tally  sheets  while  the  other  handled  the  ballots;  and  that  the  tally  sheets 
signed  by  the  two  constituted  and  were  intended  to  constitute  reports  of  the  results 
of  the  votes  counted  by  them. 

Morton,  J.  This  was  an  indictment  in  two  counts  under  St. 
1907,  c.  560,  sees.  270,  410,  charging  the  defendant  with  will- 
fully performing  his  duty  as  an  election  officer  contrary  to  law 
by  knowingly  making  a  false  count  of  votes  on  the  license  ques- 
tion, and  by  knowingly  making  a  false  report  of  the  result  of  a 
canvass  of  votes  on  said  question  at  the  municipal  election  for 
the  city  of  New  Bedford,  held  Dec.  3,  1907. 

There  was  a  verdict  of  guilty  on  each  count,  and  the  case  is 
here  on  exceptions  by  the  defendant  to  the  refusal  of  the  judge 
to  direct  a  verdict  for  the  defendant,  and  to  the  refusal  of  the 
judge  to  give  other  rulings  requested  by  the  defendant;  also 
to  the  admission  of  evidence,  and  to  the  findings  of  fact  and 
rulings  of  law  made  upon  a  motion  for  a  new  trial,  which  was 
filed  by  the  defendant. 

It  appeared  that  the  defendant  was  duly  appointed  an  election 
officer  and  acted  as  such  at  the  election  in  question  in  Precinct 
9  of  Ward  3,  and  that  he  was  assigned  by  the  warden  or  pre- 
siding officer  to  work  with  one  Jennings  in  canvassing  and 
counting  the  ballots  which  were  cast  in  that  precinct.  It  also 
appeared  that  after  the  polls  were  closed  the  ballots  were  taken 
from  the  ballot  box  and  arranged  by  the  election  officers,  of 
whom,  including  the  defendant,  there  were  six,  in  blocks  or 
packages  of  fifty  ballots  each.  There  was  testimony  tending  to 
show  that  in  canvassing  and  counting  the  ballots  the  course 
pursued  by  Jennings  and  the  defendant  was  as  follows:  Jennings 
would  take  a  block  of  ballots  and  call  off  from  each  ballot  the 
names  of  the  persons  voted  for,  and  "yes"  or  "no"  or  "blank" 
according  as  the  license  question  was  answered  "yes"  or  "no," 
or  not  at  all,  and  the  defendant  would  make  a  mark  upon  a  tally 
sheet  under  the  name  of  the  person  voted  for  and  against   the 


COMMONWEALTH   V.    EDGERTON.      SUP.    JUD.    CT.,    1909.         149 

word  "yes"  or  "no"  or  "blank,"  according  to  the  announce- 
ment made  by  Jennings.  There  was  a  tally  sheet  for  each 
block  or  part  of  a  block.  After  a  block  had  been  thus  can- 
vassed and  counted  the  defendant  would  slide  the  tally  sheet 
over  to  Jennings,  who  would  announce  the  totals,  and  the 
defendant  would  enter  the  figures  thus  given  in  a  column  headed 
"totals"  at  the  right  of  the  tally  sheet.  The  tally  sheet  was 
then  signed  by  Jennings  and  the  defendant  and  folded  up  and 
placed  with  the  ballots  in  the  envelope  from  which  the  latter 
had  been  taken,  and  afterwards  the  totals  on  each  tally  sheet 
were  entered  by  the  clerk  on  a  sheet  called  the  total  vote  sheet. 
After  the  ballots  had  all  been  counted  they  were  placed  in  a  box 
which  was  sealed  up  and  sent  with  the  tally  sheets,  total  vote 
sheets,  a  book  called  the  precinct  book  containing  the  result  of 
the  votes  cast  in  the  precinct  as  ascertained  by  the  election 
officers,  the  check  lists,  unused  ballots  and  ballot  box,  to  the 
city  clerk.  After  the  election  there  was  a  recount  of  the  ballots 
by  the  registrars  of  voters  on  the  license  question,  and  the 
results  of  their  count  of  blocks  3,  5  and  6  differed  materially 
from  the  results  of  the  counts  of  those  blocks  as  shown  by  the 
tally  sheets  kept  by  the  defendant.  These  blocks  and  block  9 
were  specified  by  the  district  attorney,  in  answer  to  the  de- 
fendant's motion  for  a  bill  of  particulars,  as  those  in  regard  to 
which  the  alleged  false  count  and  report  were  made  by  the 
defendant.  There  was  also  other  evidence  tending  to  show 
that  the  defendant's  count  of  these  blocks  was  not  correct. 
All  of  the  other  election  officers  were  summoned  by  and  testified 
as  witnesses  for  the  Commonwealth.  The  defendant  was  a 
witness  in  his  own  behalf. 

1.  The  city  clerk  was  called  as  a  witness  by  the  district  at- 
torney, and  produced  the  tally  sheets,  twelve  in  number,  used 
by  the  election  officers  in  the  precinct,  on  the  day  of  election, 
and  they  were  offered  in  evidence  by  the  district  attorney,  and 
were  admitted,  subject  to  the  defendant's  objection  and  ex- 
ception that  they  were  not  competent  to  prove  the  charges 
contained  in  the  indictment  and  specifications.  It  was  part 
of  the  Commonwealth's  case  to  show,  if  it  could,  that  the 
count  and  report  made  by  the  defendant  were  wrong.  In  order 
to  do  that  it  was  necessary  to  show  what  the  count  and  report 
made  by  the  defendant  were.  The  tally  sheets  kept  by  him  of 
the  blocks  specified  were  the  best  evidence  of  the  count  and 
report  made  by  him  of  the  ballots  contained  in  those  blocks, 
and   were   plainly   competent.      No   objection   was   made   to   the 


150  MASSACHUSETTS  ELECTION  CASES  —  1909. 

admission  of  the  tally  sheets  on  the  ground  that  they  included 
tally  sheets  kept  by  other  officers.  If  there  had  been,  no  doubt 
such  other  tally  sheets  would  have  been  excluded.  Moreover, 
the  judge  carefully  instructed  the  jury  that  any  acts  or  irregu- 
larities in  which  the  defendant  took  no  part  should  have  no 
effect  against  him,  and  the  jury  must  be  presumed  to  have 
followed  the  instuction  thus  given. 

2.  The  testimony  of  the  bystanders  Garside  and  Cram  x  was 
plainly  admissible  on  the  issue  whether  the  defendant  wrongly 
counted  and  reported  the  ballots  counted  and  reported  by  him. 
The  fact  that  they  were  not  election  officers  and  were  interested 
in  the  election  only  as  citizens  did  not  render  their  testimony 
as  to  what  they  observed  in  regard  to  the  defendant's  conduct 
inadmissible. 

3.  The  testimony  of  the  registrars  of  voters  in  regard  to  the 
recount  was  also  plainly  admissible  on  the  question  whether  the 
ballots  had  been  correctly  counted  and  canvassed.  The  de- 
fendant contends  that  the  ballots  themselves  should  have  been 
produced  for  the  jury  to  count  as  the  best  evidence.  It  may 
be  doubted  whether  their  production  could  have  been  compelled. 
But,  however  that  may  be,  the  question  was  whether  the  tally 
kept  by  the  defendant  was  a  correct  tally  or  count,  and  any 
one  who  had  counted  the  ballots  or  who  had  followed  the  count 
or  tally  kept  by  another  could  testify  thereto,  as  to  any  other 
competent  fact  within  his  own  observation.  While  in  a  sense 
the  ballots  themselves  were  the  best  evidence  of  the  number 
cast  pro  and  con  on  the  license  question,  they  were  not  from 
the  nature  of  the  case  the  only  evidence.  The  number  was  a 
matter  of  computation  and  the  computation  could  be  testified 
to  by  any  one  who  made  it.     No  question  was  raised,  so  far  as 

1  Garside  was  a  reporter  for  the  "New  Bedford  Standard,"  a  daily  newspaper,  and  Cram  was 
a  reporter  for  the  "  New  Bedford  Times,"  another  daily  paper.  They  were  standing  outside  the  rail 
and  kept  count  of  the  license  vote  as  Jennings  called  it  off.  Among  other  things,  Garside  testified 
as  follows:  — 

"I  kept  a  count  in  my  notebook  of  block  3.  I  made  it  22  yes  and  did  not  count  blanks.  Edger- 
ton  made  30  yes  and  19  no  and  1  blank.  I  looked  then  to  see  which  was  first,  the  yes  or  the  no, 
and  I  spoke  to  Cram.  I  counted  the  next  block  as  follows:  20  yes,  25  no  and  5  blanks.  I  asked 
Edgerton  what  he  made,  and  he  said  that  he  had  28  yes,  17  no,  5  blanks.  I  counted  block  6  and 
saw  Cram  count  also;  that  was  the  block  on  which  there  was  a  misunderstanding  between  Jen- 
nings and  Edgerton.  I  did  not  find  out  whether  the  disputed  ballot  was  a'blank'  or  a  'no.'  I 
made  the  count  19  yes,  29  no  and  1  blank,  having  1  uncertain.  On  the  next  block  Cram  stood 
at  the  rail  marking  down;  we  counted  the  same  as  Edgerton.  On  the  next  block  I  counted  the 
no  votes  in  my  head  and  Cram  counted  the  no's  also.    Our  count  was  the  same  as  Edgerton." 

In  cross-examination  Garside  further  testified:  "I  did  not  keep  the  last  count  in  the  book 
because  I  thought  mistakes  might  continue  to  be  made  if  they  did  not  know  they  were  being 
watched.  I  reasoned  that  way  as  soon  as  it  became  evident  that  no  mistakes  were  made  on  one 
block  when  Cram  stood  at  the  rail  taking  counts.  There  was  every  appearance  of  intentiona 
wrong  count.    I  came  to  that  conclusion  after  three  blocks  had  been  counted." 


COMMONWEALTH   V.    EDGERTON.      SUP.    JUD.    CT.,    1909.         151 

appears,  as  to  whether  any  of  the  ballots  had  or  had  not  been 
properly  counted  by  reason  of  any  irregularities  appearing  upon 
the  face  thereof.  The  registrars  were  properly  allowed  to  refresh 
their  recollection  by  referring  to  the  sheets  used  by  them  at  the 
recount,  and  the  jury  were  properly  allowed  to  inspect  the  sheets 
for  the  purpose  of  assisting  them  in  passing  upon  the  credibility 
of  the  registrars.  The  jury  were  expressly  instructed  that  the 
sheets  thus  used  by  the  registrars  to  refresh  their  recollection 
were  not  evidence  and  could  not  be  considered  by  them.  The 
fact  that  the  defendant  had  no  notice  of  and  was  not  present 
at  the  recount  was  immaterial.  The  statute  contains  no  provi- 
sion for  such  notice  in  a  case  like  the  present.  St.  1907,  c.  560, 
sec.  300.  Neither  was  the  fact  that  certain  requirements  of  the 
statute  were  not  observed  at  the  recount  material.  The  legality 
or  illegality  of  the  recount  was  not  in  issue,  and  the  failure  to 
observe  the  statutory  requirements  which  it  was  contended 
were  not  observed  was  not  shown  and  could  not  have  been 
found  to  have  affected  the  correctness  of  the  recount. 

4.  The  defendant  asked  the  judge  to  instruct  the  jury  that 
there  was  no  evidence  that  he  counted  any  votes,  or  knowingly 
and  willfully  made  a  false  count,  or  knowingly  made  a  false 
report  of  any  count  or  canvass  of  votes.  The  judge  refused  to 
do  so  and  the  defendant  excepted.  Full  instructions  were  given 
to  which  no  objection  was  made  except  to  the  refusal  to  give  the 
above  instructions.  We  think  that  the  presiding  judge  was 
right  in  refusing  to  give  the  instructions  requested.  It  could 
not  have  been  ruled  that  there  was  no  evidence  that  the  defend- 
ant counted  any  votes  or  made  a  report  of  a  count  and  canvass. 
He  made  marks  on  the  tally  sheet  as  Jennings  called  off  the 
answers,  for  the  purpose  of  keeping  an  account  of  the  votes, 
and  the  jury  were  warranted  in  finding  that  this  constituted  a 
counting  and  canvassing  of  the  votes  by  him.  It  was  not 
necessary  that  he  should  handle  each  ballot  in  order  to  count 
and  canvass  the  votes.  The  count  and  canvass  was  none  the 
less  a  count  and  canvass  by  the  defendant  because  made  by 
Jennings  and  himself,  each  assisting  the  other,  Jennings  handling 
the  ballots  and  the  defendant  keeping  the  count.  The  jury  were 
also  warranted  in  finding  that  the  tally  sheets  signed  by  Jennings 
and  the  defendant  constituted  and  were  intended  to  constitute 
reports  of  the  results  of  the  votes  counted  and  canvassed  by 
them,  and  were  so  regarded  by  those  charged  with  the  duty  of 
declaring  the  results  of  the  election.  There  was  also  evidence 
warranting  the  jury  in  finding  that  the  defendant  willfully  and 


152  MASSACHUSETTS .  ELECTION  CASES  —  1909. 

knowingly  made  a  false  count  and  canvass  and  a  false  report 
of  the  votes  counted  and  canvassed  by  him.  There  was  testi- 
mony tending  to  show  that  in  blocks  3,  5  and  6  there  was  an 
error  of  forty-two  votes,  —  the  recount  showing  twenty-one  less 
votes  in  favor  of  license,  fifteen  more  against  it,  and  six  more 
blanks.  The  total  number  of  ballots  in  these  three  blocks  was 
one  hundred  and  fifty.  Jennings  was  a  witness  for  the  Common- 
wealth and  testified  in  substance  that  he  called  off  the  votes 
correctly.  The  whole  number  of  votes  in  the  city  on  the  license 
question  was  upwards  of  eight  thousand.  The  majority  for 
license  on  the  original  count  of  the  whole  vote  was  one  hundred 
and  eighty.  On  the  recount  this  was  reduced  to  ninety-three. 
Of  the  eighty-seven  votes  thus  shown  to  have  been  wrongly 
counted  for  license,  thirty-eight,  or  almost  one-half,  were  shown 
or  could  be  found  to  have  been  shown  to  be  in  the  three  blocks 
of  ballots  of  fifty  each,  counted  and  canvassed  by  the  defendant. 
This  warranted  the  jury  in  finding  either  that  he  was  grossly 
incompetent  or  that  the  errors  were  committed  by  him  willfully 
and  knowingly.  There  was  also  evidence  tending  to  show  that, 
after  he  became  aware  that  Garside  and  Cram  were  following 
the  count,  the  defendant  kept  the  tally  correctly.  There  was 
likewise  evidence  of  conversations  with  and  statements  made 
by  the  defendant  which  the  jury  may  have  thought  more  con- 
sistent with  guilty  knowledge  on  his  part  than  with  any  other 
reasonable  explanation.  The  rulings  requested  by  the  defendant 
could  not  therefore  have  been  properly  given. 

5.  The  jury  retired  to  deliberate  upon  their  verdict  about  11 
o'clock.  They  were  all  taken  to  dinner.  About  7  o'clock  in  the 
evening  the  officer  in  charge  of  them  asked  if  they  cared  for 
supper,  and,  upon  being  told  that  they  did,  made  preparation 
accordingly.  One  juryman  said  that  he  did  not  feel  well  and  did 
not  care  for  supper  and  would  stay  and  smoke.  The  other 
jurors  were  taken  to  supper  by  the  officer,  and  this  juryman 
was  left  in  the  jury  room,  which  was  locked  and  the  key  was 
left  outside  near  the  door,  in  its  accustomed  place.  When  the 
jury  returned  the  juror  was  found  in  the  jury  room  with  the 
door  locked.  The  jury  deliberated  all  night  and  did  not  reach 
a  verdict  until  after  breakfast  about  10  o'clock  the  next  morning. 
The  court  had  adjourned  when  the  jury  were  taken  out  to 
supper,  and  the  matter  of  leaving  the  juror  alone  in  the  jury 
room  was  not  therefore  brought  to  the  attention  of  the  judge 
at   that   time.      After   the    verdict   was   rendered    the   defendant 


COMMONWEALTH   V.    EDGERTON.      SUP.   JUD.    CT.,    1909.         153 

filed  a  motion  for  a  new  trial,  one  ground  of  which  was  that 
the  jury  had  been  allowed  to  separate  after  the  case  had  been 
submitted  to  them  and  before  they  had  arrived  at  their  verdict. 
The  judge  denied  the  motion  and  the  defendant  excepted  thereto. 
The  decision  of  the  presiding  judge  is  not  open  to  revision  here 
unless  there  was  as  matter  of  law  some  error  in  his  rulings  or 
findings.  Nichols  v.  Nichols,  136  Mass.  256.  -  He  found  as 
matter  of  fact  that  the  officer  and  the  juror  acted  in  good 
faith,  and  that  the  reasons  which  the  juror  gave  for  not  wanting 
to  go  to  supper  were  true;  that  he  remained  locked  in  the 
jury  room  alone  all  the  time  the  other  jurors  were  absent,  saw 
no  one  and  spoke  to  no  one,  and  nothing  occurred  during  their 
absence  to  influence  his  mind  in  arriving  at  a  verdict.  The 
judge  also  found  that  there  was  no  talk  between  the  other 
jurors  at  the  supper  table  in  regard  to  the  case,  and  that,  even 
if  some  of  the  jurors  did  talk  about  the  case  in  going  from  and 
returning  to  the  court  house,  what  was  said  was  of  a  casual 
and  informal  nature  and  could  not  reasonably  be  considered  as 
a  part  of  the  deliberations  of  the  jury;  and  he  found  that, 
although  the  juror  might  have  heard  and  have  been  influenced  by 
the  remarks  made  by  some  of  the  jurors  in  going  to  and  re- 
turning from  supper,  the  argument  was  too  unsubstantial  to 
justify  setting  aside  the  verdict,  and  the  facts  did  not  show 
a  reasonable  probability  that  the  rights  of  the  defendant  had 
been  violated.  He  ruled  as  matter  of  law  that,  on  the  facts 
found  by  him,  the  defendant  was  not  entitled  to  a  new  trial, 
and  he  refused  to  allow  the  motion  as  a  matter  of  discretion. 
We  do  not  see  how  it  can  be  said  as  matter  of  law  that  there 
was  any  error  in  his  rulings  or  findings.  The  only  difference 
between  this  case  and  Commonwealth  v.  Gagle,  147  Mass.  576, 
is  that  in  that  case  the  juror  was  permitted  by  the  court  to 
remain  in  the  jury  room  under  the  charge  of  an  officer.  But 
if  what  took  place  in  that  case  did  not  constitute  as  matter  of 
law  such  a  separation  as  to  prejudice  the  rights  of  the  de- 
fendant, we  do  not  see  how  what  took  place  here  can  be  held  as 
matter  of  law  to  have  constituted  such  a  separation.  See  also 
Nichols  v.  Nichols,  136  Mass.  256.  Sound  public  policy  re- 
quires that  the  safeguards  which  have  been  established  to  insure 
verdicts  free  from  all  improper  influences  should  be  strictly 
maintained;  but  as  was  said  in  Nichols  v.  Nichols,  the  court 
"ought  not  to  be  swift  to  grant  a  new  trial  on  account  of  ir- 
regularities   not    attended    with    any    intentional    wrong,     and 


154  MASSACHUSETTS  ELECTION  CASES  —  1909. 

where  it  is  made  satisfactorily  to  appear  that  the  party  com- 
plaining has  not  and  could  not  have  sustained  any  injury  from 
them." 

Exceptions  overruled. 

J.  Walsh  for  the  defendant. 

J.  M.  Swift,  District  Attorney  (F.  B.  Fox,  Assistant  District 
Attorney,  with  him),  for  the  Commonwealth. 


RAY  V.  REGISTRARS  OF  VOTERS,  ASHLAND.      SUP.  JUD.  CT.,   1915.  155 
SUPREME   JUDICIAL   COURT. 

Fred   W.   Ray  v.   Registrars   of  Voters   of  Ashland. 

(Reported  in  221  Mass.  223.) 

Suffolk,  Nov.  9,  1914  —  May  21,  1915.    Present,  Rttgg,  C.J./Loring,  Braley, 
DeCourcy,  Crosby,  Pierce  and  Carroll,  JJ. 

Elections.  Pasters.  —  There  being  no  express  statutory  provision  to  the  con- 
trary, a  voter's  designation  on  the  official  ballot  of  his  choice  for  a  certain  officer  by 
pasting  over  a  name  regularly  placed  upon  the  ballot  a  slip  containing  the  name  of  a 
person  not  nominated  by  any  party  and  then  placing  a  cross  in  the  appropriate  blank 
opposite  the  name,  while  irregular,  is  not  illegal,  and  the  ballot  properly  may  be 
counted  as  a  vote  for  the  person  named  on  the  slip. 

Mistake  in  marking  Official  Ballot.  —  Where  such  election  was  for  the  choice  of 
selectmen  for  a  term  of  three  years,  the  words  "three  years"  placed  after  the  name 
printed  on  the  slip  do  not  as  a  matter  of  law  constitute  a  mark  upon  the  ballot  by 
which  it  may  be  identified,  as  described  in  St.  1913,  c.  835,  sec.  295,  nor  render  the 
ballot  invalid. 

Such  a  ballot  properly  may  be  counted  for  the  man  whose  name  appears  upon  the 
paster,  although  only  the  capital  letters  that  begin  his  Christian  and  surname  and 
his  middle  initial  are  printed  in  type  conforming  to  the  requirements  of  St.  1913, 
c.  835,  sec.  280,  258,  261,  as  to  size  and  character  of  the  letters. 

Petition,  filed  on  April  9,  1914,  for  a  writ  of  mandamus 
directing  the  respondents,  the  board  of  registrars  of  voters  of 
the  town  of  Ashland,  to  reject  certain  ballots  cast  at  an  election 
held  in  the  town  on  March  2,  1914,  for  the  choice  of  selectmen 
for  the  term  of  three  years  and  to  certify  to  the  town  clerk  the 
election  of  the  petitioner. 

The  case  was  heard  by  Hammond,  J.  He  found  the  following 
among  other  facts:  — 

The  petitioner  was  a  candidate  for  the  office  of  selectman  on 
nomination  papers,  and  his  name  was  duly  printed  upon  the 
official  ballot.  One  Charles  T.  Dearborn  also  was  a  candidate 
for  the  office  of  selectman,  but  had  not  been  nominated  by  any 
party,  nor  had  his  name  been  printed  upon  the  official  ballot. 
Many  voters  inserted  the  name  of  Dearborn  upon  their  ballots 
either  by  writing  in  his  name  in  the  blank  space  left  at  the  end 
of  the  list  of  candidates  for  selectmen,  or  by  the  use  of  pasters 
placed  in  such  blank  spaces. 

Upon  the  face  of  the  election  returns  made  by  the  election 
officers  Dearborn  had  a  plurality  of  six  votes.  A  petition  for  a 
recount  of  the  ballots  was  filed  and  the  respondents  recounted 
the    ballots    and    found    and    determined    that    Dearborn    had 


156  MASSACHUSETTS  ELECTION  CASES  —  1915. 

received  one  hundred  and  fifty-nine  votes,  and  that  the  peti- 
tioner had  received  one  hundred  and  forty-five  votes.  Among 
the  ballots  counted  by  the  respondents  for  Dearborn  were 
eighteen  pasters  which  had  printed  upon  them  the  name  of 
Charles  T.  Dearborn  and  which  were  placed  over  the  name  of 
the  petitioner  in  the  space  on  the  official  ballot  where  the 
petitioner's  name  was  printed.  The  cross  in  the  square  at  the 
right  of  each  such  paster  was  counted  for  Dearborn.  The  name 
of  Charles  T.  Dearborn,  wherever  it  appeared  upon  the  pasters, 
except  for  the  first  letter  of  his  Christian  name,  the  middle 
initial  and  the  first  letter  of  his  surname,  was  not  printed  in 
capital  letters,  and  the  type  in  which  it  was  printed  was  less 
than  one-eighth  of  an  inch  in  height.  The  pasters  in  addition 
to  the  name  of  "  Charles  T.  Dearborn,  Cherry  Street,"  had 
printed  upon  them  the  words  "three  years." 

The  single  justice  ruled  that  the  eighteen  ballots  with  pasters 
placed  over  the  name  of  the  petitioner,  which  did  not  have  the 
candidate's  name  in  all  capital  letters  nor  in  letters  not  less 
than  one-eighth  of  an  inch  in  height,  and  which  had  after  the 
name  the  words  "three  years"  printed  upon  them,  were  all 
properly  counted  for  Charles  T.  Dearborn,  and  upon  such 
findings  and  ruling  ordered  the  petition  dismissed,  and  at  the 
request  of  the  petitioner  reported  the  case  for  determination  by 
the  full  court. 

The  case  was  argued  at  the  bar  in  November,  1914,  before 
Rugg,  C.J.,  Hammond,  Braley,  DeCourcy  and  Crosby,  JJ., 
and  afterwards  was  submitted  on  briefs  to  all  the  justices  con- 
stituting the  court. 

J.  P.  Dexter  for  the  petitioner. 

E.  L.  McManus  for  the  respondents. 

Braley,  J.  It  appears  that,  the  opponent  of  the  petitioner 
for  the  office  of  selectman  for  the  term  of  three  years  not  having 
been  nominated  by  any  party,  his  name  was  not  printed  on  the 
official  ballot.  While  many  voters,  either  in  writing  or  by  the 
use  of  pasters,  inserted  his  name  in  the  blank  space  provided 
therefor  at  the  end  of  the  list  of  candidates,  these  votes  seemingly 
were  insufficient  to  insure  his  election,  and  the  petitioner  is 
entitled  to  the  office  unless  the  eighteen  pasters  placed  over  the 
petitioner's  name  in  the  space  where  his  name  appeared,  and 
the  cross  made  in  the  square  opposite  thereto,  were  properly 
counted  for  his  opponent  whose  name  they  bore. 

The  cardinal  rule  is,  that  "if  the  intent  of  the  voter  can  be 


RAY  V.  REGISTRARS  OF  VOTERS,  ASHLAND.      SUP.  JUD.  CT.,   1915.  157 

fairly  determined,  effect  shall  be  given  to  that  intent  and  the 
vote  counted  in  accordance  therewith."  Flanders  v.  Roberts, 
182  Mass.  524,  525,  526,  and  authorities  cited.  And  his  intention 
is  to  be  found  from  the  evidence  of  what  he  did.  If  not  pro- 
hibited by  statute,  ballots  which  fairly  and  unmistakably  express 
the  voters'  purpose  are  to  be  counted  as  deposited  in  the  ballot 
box.  O'Connell  v.  Mathews,  177  Mass.  518,  521;  Brown  v. 
McCollum,  76  Iowa,  479;  State  v.  Eagan,  115  Wis.  417.  The 
original  act  of  1888,  c.  436,  sec.  23,  as  amended  by  St.  1889, 
c.  413,  provided  that  the  voter  could  fill  in  the  blank  space  on 
the  ballot  with  the  name  of  the  candidate  of  his  choice;  but  in 
the  codification  of  the  election  laws  in  St.  1893,  c.  417,  sec.  162, 
this  wording  was  so  changed  as  to  read  "by  inserting  the  name 
of  the  candidate  of  his  choice."  It  was  said  in  Cole  v.  Tucker, 
164  Mass.  486,  488,  where  the  use  of  the  official  ballot  by  the 
voter  was  under  discussion,  that  "the  acts  permit  the  voter  to 
vote  for  such  persons  as  he  pleases  by  leaving  blank  spaces  on 
the  official  ballot  in  which  he  may  write  or  insert  in  any  other 
proper  manner  the  names  of  such  persons."  The  blank  space 
is  as  appropriate  for  the  insertion  of  a  printed  slip  as  of  a  written 
name,  and  under  this  statute  and  subsequent  revisions  the  use 
of  pasters,  while  not  expressly,  is  impliedly,  recognized.  St. 
1898,  c.  548,  sec.  224;  R.  L.  c.  11,  sec.  227;  St.  1907,  c.  560, 
sec.  260;  St.  1913,  c.  835,  sec.  292,  as  amended  by  St.  1914, 
c.  435.  We  find  no  express  provision,  however,  in  St.  1913, 
c.  835,  prohibiting  the  voter,  if  he  chooses  such  mode  of  exercis- 
ing his  right,  from  placing  a  written  or  printed  slip  bearing  the 
name  of  another  person  over  the  name  of  a  candidate,  and 
voting  for  that  person  by  making  a  cross  in  the  appropriate 
blank  opposite  the  name.  The  designation  may  be  irregular, 
but  it  is  not  illegal.  Coughlin  v.  McElroy,  72  Conn.  99;  Tandy 
v.  Lavery,  194  111.  372.  It  is  not  a  "spoiled  ballot,"  which 
under  section  296  the  voter  can  exchange  for  a  fresh  ballot,  nor 
is  the  paster  itself  a  distinguishing  mark  used  by  the  voter, 
subjecting  him  to  the  penalty  of  imprisonment  under  section 
543.  People  v.  Shaw,  133  N.  Y.  493,  497,  498.  The  cases 
cited  by  the  petitioner  are  not  in  conflict  with  this  view.  In 
Whittam  v.  Zahorik,  91  Iowa,  23,  and  Van  Winkle  v.  Crabtree, 
34  Ore.  462,  the  ballots  plainly  showed  marks  by  which  the 
voter  could  be  readily  identified,  while  in  Fletcher  v.  Wall,  172 
111.  426,  the  use  of  pasters  was  prohibited  by  statute.  Apple  v. 
Barcroft,  158  111.  649,  and  Kelly  v.  Adams,  183  111.  193,  deter- 
mined that  two  straight  marks  through  the  circles  and  squares 


158  MASSACHUSETTS  ELECTION  CASES  —  1915. 

on  a  printed  ballot  were  not  crosses;  that  a  cross  to  the  right  of 
the  name  of  a  candidate,  between  such  name  and  the  square 
opposite  the  name  of  an  opposing  candidate,  did  not  sufficiently 
show  the  intention  of  the  voter;  that  a  ballot  marked  only  by 
pencil  erasures  of  all  the  names  on  one  ticket  could  not  be 
counted;  and  that  a  ballot  not  officially  endorsed  by  the  judge 
of  election  was  not  a  ballot  within  the  statute,  and  that  the 
ballot  in  question,  which  bore  two  sets  of  crosses  over  the 
printed  names  of  eight  of  the  candidates  for  office,  with  a  non- 
descript mark  shaped  like  a  large  hook  upon  one  of  the  crosses, 
contained  distinguishing  marks. 

•  A  further  review  is  unnecessary.  The  decisions  as  to  what 
constitute  marks  which  invalidate  the  ballot  depend  upon  the 
construction  of  local  statutes  and  are  not  uniform,  but  we  have 
found  none  exactly  similar  to  the  case  at  bar.  See  15  Cyc. 
357,  358,  359,  and  notes. 

The  election,  as  we  have  said,  was  for  the  choice  of  selectmen 
for  three  years  and  other  town  officers  for  the  ensuing  year.  The 
words  "three  years,"  appearing  on  the  paster  after  the  name  of 
the  person  voted  for,  correctly  stated  the  term  of  office  required 
by  the  official  ballot.  St.  1913,  c.  835,  sees.  406,  407.  If  a  dis- 
tinguishing mark  is  the  use  by  the  voter  of  numbers,  letters, 
characters  or  symbols  by  which  he  can  be  identified  and  how 
he  voted  determined,  the  words  of  themselves  do  not  disclose 
the  voter's  identity,  and  whether  by  some  prearrangement  or 
understanding  they  were  deliberately  so  intended  was  a  question 
of  fact  upon  which  the  finding  for  the  respondents  by  the  single 
justice  is  conclusive.  Voorhses  v.  Arnold,  108  Iowa,  77;  Kelso 
v.  Wright,  110  Iowa,  560;  Boston  Supply  Co.  v.  Rubin,  214 
Mass.  217,  220.  If  it  be  suggested  that  the  blank  spaces  enable 
the  voter  to  insert  the  name  of  any  person  not  printed  on  the 
ballot,  section  259  reads  that  those  spaces  are  left  in  which 
"the  voter  may  insert"  such  names.  The  statute  does  not  say 
that  he  must  use  this  mode  of  expressing  his  will  or  his  ballot 
is  defective,  If  the  construction  by  implication  the  petitioner 
urges  is  adopted,  he  gets  an  office  to  which  he  has  not  been 
elected,  unless  the  will  of  a  majority  of  the  voters  at  an  election, 
where  no  fraud  or  misconduct  appears  or  is  claimed,  is  nullified, 
a  result  wholly  inconsistent  with  the  spirit  of  our  election  laws. 
The  Legislature,  if  it  intended  to  restrict  the  voter  to  the  use 
of  the  blank  spaces  alone,  should  have  directed  in  appropriate 
language  that  this  was  the  only  way  in  which  the  voter  could 
express  an  independent  choice. 


RAY  V.  REGISTRARS  OF  VOTERS,  ASHLAND.      SUP.  JUD.  CT.,  1915.  159 

The  petitioner  also  relies  on  Miner  v.  Olin,  159  Mass.  487, 
as  having  decided  that  the  voter  no  longer  can  prepare  his  own 
ballot  except  by  the  insertion  of  names  in  the  spaces  left  blank. 
But  the  only  questions  there  considered  were  the  constitutionality 
of  the  provisions  of  St.  1893,  c.  417,  relating  to  caucuses  and  the 
placing  of  names  of  candidates  not  thus  nominated  on  the  official 
ballot  by  the  Secretary  of  the  Commonwealth.  It  must  be 
borne  in  mind  that  our  laws  relating  to  elections  are  enacted 
not  merely  to  preserve  the  purity  and  secrecy  of  the  ballot  and 
to  curb,  in  so  far  as  possible,  corrupt  practices,  but  to  ascertain 
and  not  to  thwart  the  popular  will  honestly  expressed.  Blackmer 
v.  Hildreth,  181  Mass.  29,  31. 

The  St.  of  1913,  c.  835,  sec.  280,  provides  that  pasters  which 
are  to  be  placed  on  the  official  ballot  shall  conform,  as  to  names, 
residences  and  political  designations  of  candidates  and  the  size 
of  the  type  in  which  the  names  shall  be  printed  with  the  re- 
quirements of  sections  258  and  261,  where  the  names  of  all 
candidates  not  here  material  "shall  be  in  capital  letters  not 
less  than  one  eighth  of  an  inch  nor  more  than  one  quarter  of 
an  inch  in  height."  The  single  justice  having  found  that  the 
name  on  the  pasters  was  not  in  conformity  with  the  statute, 
except  as  to  the  initial  letters  of  the  name  printed  thereon,  the 
petitioner  further  contends  that  for  this  reason  these  ballots 
are  defective.  If  the  voter  had  chosen  to  write  or  even  print 
in  the  blank  space  the  name  of  the  person  for  whom  he  desired 
to  vote,  followed  by  a  cross  in  the  appropriate  space,  the  ballot 
would  have  been  counted  under  St.  1913.  c.  835,  sec.  292, 
although  the  size  of  the  letters  used  did  not  conform  with  the 
requirement  of  section  261.  Cole  v.  Tucker,  164  Mass.  486,  488. 
It  would  follow  from  the  petitioner's  view  that,  if  the  voter 
chooses  to  use  a  slip  on  which  the  name  had  been  similarly 
printed  with  the  appropriate  designation,  the  ballot  is  defective 
because  the  letters  are  not  of  statutory  size.  Or,  in  other 
words,  the  first  class  of  voters  c&n  have  their  votes  counted, 
while  those  using  the  second  mode  practically  are  disfranchised, 
which,  in  the  opinion  of  a  majority  of  the  court,  cannot  be  reached 
under  the  statute.      O'Connell  v.    Mathews,  177  Mass.  518,  521. 

The  statute,  as  to  all  the  questions  raised,  being  directory 
and  not  mandatory,  the  board  of  registrars  rightly  counted 
these  ballots,  and  the  petition  by  the  terms  of  the  report  is  to 
be  dismissed.  Sewall  v.  Jones,  9  Pick.  412,  414;  Torrey  v. 
Millbury,  21  Pick.  64,  67;  Green  v.  Holway,  101  Mass.  243,  248; 
Taunton  v.  County  of  Bristol,  213  Mass.  222,  224. 

So  ordered. 


160  MASSACHUSETTS  ELECTION  CASES  —  1916. 


SUPREME  JUDICIAL   COURT. 

Joseph  J.  Dinan  and  Others  v.  Simon  Swig. 

(Repoeted  in  223  Mass.  516.) 

Suffolk,   March  20,   1916  —  April  6,   1916.     Present,  Rttgg,   C.J.,  Loring, 
Braley,  DeCourcy,  Crosby,  Pierce  and  Carroll,  JJ. 

Constitutional  Law.  Legislature.  Elections.  —  So  much  of  St.  1914,  c.  783,  sec. 
10,  as  undertakes  to  impose  upon  the  courts  the  duty  of  inquiry  into  corrupt  prac- 
tices in  connection  with  the  election  of  members  of  the  General  Court  is  contrary 
to  chapter  1,  section  III,  Article  X,  of  the  Constitution,  which  provides  that  "The 
house  of  representatives  shall  be  the  judge  of  the  returns,  elections,  and  qualifications 
of  its  own  members,"  and  also  to  Art.  30  of  the  Declaration  of  Rights,  which  declares 
the  separation  of  the  legislative  and  judicial  departments  of  the  government. 

Rugg,  C.J.  This  is  a  petition  brought  under  St.  1913,  c.  835, 
sec.  369,  as  amended  by  St.  1914,  c.  783,  sec.  10,  which  relates 
to  corrupt  practices  in  elections,  against  the  respondent,  who  was 
elected  a  member  of  the  General  Court  of  the  Commonwealth  for 
1916.  Summarily  stated,  the  statute,  so  far  as  here  material, 
requires  that,  upon  petition  of  five  or  more  voters  having  reason- 
able cause  to  believe  that  there  has  been  committed  by  a  success- 
ful candidate  (for  whom  they  had  a  right  to  vote),  in  connection 
with  his  election  or  in  his  interest  and  behalf,  a  corrupt  practice 
as  defined  in  the  act,  three  judges  of  the  Superior  Court  shall 
investigate  the  election.  If  after  a  hearing  it  is  found  that  such 
corrupt  practice  has  been  committed,  then  the  court  is  given 
power  to  enter  a  decree  (section  10  (#)),  "declaring  void  the 
election  of  the  defendant  to  the  office  in  question,  and  ousting 
and  excluding  him  from  such  office  and  declaring  the  office 
vacant:  providing,  however,  that  if  an  election  petition  is  brought 
to  investigate  the  election  of  a  member  of  the  senate  or  house 
of  representatives  of  the  commonwealth,  or  of  the  United  States 
Congress,  and  the  court  or  a  majority  of  them  shall  find  that 
violations  of  this  act  have  been  committed  with  reference  to  such 
election,  of  such  a  nature  that  a  decree  would  otherwise  be 
entered  declaring  void  the  election  or  ousting  or  excluding  the 
candidate  from  such  office  and  declaring  the  office  vacant,  the 
court  shall,  subject  to  the  limitations  and  conditions  hereinbefore 
prescribed,  enter  a  decree  declaring  that  with  respect  to  the 
election  of  the  said  candidate  a  corrupt  practice  was  committed 
and  setting  forth  the  facts  relative  to  such  finding,   and  shall 


DINAN  V.   SWIG.      SUP.   JUD.   CT.,    1916.  161 

forthwith  certify  the  decree  and  declaration  to  the  secretary  of 
the  commonwealth,  to  be  by  him  transmitted  to  the  presiding 
officer  of  the  legislative  body  to  which  the  defendant  was 
elected. " 

Proceedings  have  been  had  in  accordance  with  the  terms  of 
this  statute,  and  a  finding  with  appropriate  details  has  been 
made  that  the  respondent,  elected  a  member  of  the  House  of 
Representatives  of  the  Commonwealth,  committed  corrupt  prac- 
tices in  connection  with  his  election.  The  three  judges  x  then 
reported  to  this  court  among  other  matters  the  question  whether 
the  statute  is  constitutional  so  far  as  it  imposes  duties  upon  the 
court  with  reference  to  the  election  of  a  member  of  the  Legis- 
lature. 

The  pertinent  provision  of  the  Constitution  is  in  chapter  1, 
section  III,  Article  X:  "The  house  of  representatives  shall  be 
the  judge  of  the  returns,  elections,  and  qualifications  of  its  own 
members,  as  pointed  out  in  the  constitution.   ..." 

The  power  to  pass  upon  the  election  and  qualification  of  its 
own  members  thus  is  vested  exclusively  in  each  branch  of  the 
General  Court.  No  other  department  of  the  government  has  any 
authority  under  the  Constitution  to  adjudicate  upon  that  sub- 
ject. The  grant  of  power  is  comprehensive,  full  and  complete. 
It  is  necessarily  exclusive,  for  the  Constitution  contains  no  words 
permitting  either  branch  of  the  Legislature  to  delegate  or  share 
that  power.  It  must  remain  where  the  sovereign  authority  of 
the  State  has  placed  it.  General  phrases  elsewhere  in  the  Con- 
stitution, which  in  the  absence  of  an  explicit  imposition  of  power 
and  duty  would  permit  the  enactment  of  laws  to  govern  the 
subject,  cannot  narrow  or  impair  the  positive  declaration  of  the 
people's  will  that  this  power  is  vested  solely  in  the  Senate  and 
House,  respectively.  It  is  a  prerogative  belonging  to  each  house, 
which  each  alone  can  exercise.  It  is  not  susceptible  of  being 
deputed.  As  was  said  by  Chief  Justice  Gray  in  Peabody  v. 
School  Committee  of  Boston,  115  Mass.  383,  at  page  384:  "It 
cannot  be  doubted  that  either  branch  of  the  Legislature  is  thus 
made  the  final  and  exclusive  judge  of  all  questions  whether  of 
law  or  of  fact,  respecting  such  elections,  returns  or  qualifications, 
so  far  as  they  are  involved  in  the  determination  of  the  right  of 
any  person  to  be  a  member  thereof. " 

If  the  statute  should  be  construed  as  conferring  upon  the  three 
judges  of  the  Superior  Court  final  jurisdiction  to  pass  upon  the 
issue  whether  a  successful  candidate  had  been  guilty  of  corrupt 

1  Fox,  Jenney,  and  McLaughlin. 


162  MASSACHUSETTS  ELECTION  CASES  —  1916. 

practices,  it  would  be  in  derogation  of  the  express  grant  of  the 
Constitution  because  it  would  deprive  each  branch  of  the  Legis- 
lature of  the  unlimited  right  to  be  "  the  judge  of  the  .  .  .  elec- 
tions, and  qualifications  of  its  own  members."  No  legislative 
body  can  be  the  sole  judge  of  the  election  and  qualifications  of 
its  members  when  it  is  obliged  to  accept  as  final  a  decision 
touching  the  purity  of  the  election  of  one  of  its  members  made 
by  another  department  of  the  government  in  an  inquiry  to  which 
that  legislative  body  is  not  a  party  and  which  it  has  not  caused 
to  be  instituted. 

The  proceeding  created  by  the  instant  statute  does  not  ema- 
nate from  either  branch  of  the  Legislature.  It  is  set  in  motion 
only  by  the  initiative  of  five  or  more  voters.  It  may  result  in 
sending  to  the  legislative  branch,  to  which  the  defendant  has 
been  elected,  a  decree  setting  forth  the  determination  of  the 
judges  that  a  corrupt  practice  has  been  committed.  That  decree 
may  be  ignored  by  the  branch  of  the  legislature  to  which  it  is 
sent.  There  is  no  legal  compulsion  resting  upon  that  branch  to 
take  action  respecting  such  decree.  Only  its  sense  of  self-respect 
and  duty  to  the  whole  Commonwealth  to  purge  itself  of  a  mem- 
ber unworthy  of  his  office  would  impel  it  to  pay  heed  to  the 
decree.  If  action  should  be  taken,  it  still  would  be  open  for  that 
branch  of  the  Legislature  to  exercise  its  constitutional  pre- 
rogative, and  to  examine  the  whole  issue  for  itself  and  to  decide 
whether  the  election  and  qualification  of  the  member  were  such 
that  he  ought  to  be  expelled  and  the  election  declared  void. 
That  decision,  when  made  by  the  branch  of  the  Legislature  con- 
cerned, would  stand  as  final,  and  could  not  be  disputed  or  revised 
by  any  court  or  authority.  Coffin  v.  Coffin,  4  Mass.  1,  34-36; 
Opinion  of  the  Justices,  10  Gray  613,  623;  Hiss  v.  Bartlett,  3 
Gray,  468,  472,  475.  Such  decision  would  nullify  the  efficacy 
of  the  finding  of  the  facts  set  forth  in  the  decree  of  the  three 
judges  of  the  Superior  Court. 

The  Constitution  confers  upon  each  branch  of  the  Legislature 
by  necessary  implication  the  power  to  determine  for  itself  the 
procedure  as  to  settlement  of  controversies  touching  the  election 
and  qualification  of  its  own  members,  and  the  ascertainment  of 
all  facts  relative  thereto,  and  to  change  the  same  at  will.  That 
established  by  one  branch  might  differ  from  that  adopted  by  the 
other.  But  the  statute,  so  long  as  it  stands,  imposes  upon  both 
branches  uniformity  of  procedure  so  far  as  concerns  this  partic- 
ular matter.  One  branch  cannot  ignore  it  without  a  repeal  of  the 
statute.     A  repeal  can  be  accomplished  only  by  affirmative  vote 


DINAN  V.   SWIG.      SUP.   JUD.    CT.,    1916.  163 

of  both  branches  and  approval  by  the  Governor.  Yet  the 
Constitution  plainly  gives  to  each  branch  of  each  successive 
Legislature  an  untrammeled  power  to  proceed  in  its  own  manner 
and  according  to  its  own  judgment  without  seeking  the  concur- 
rence or  approval  of  the  other  branch,  or  of  the  Executive.  This 
discretion  to  determine  the  method  of  procedure  cannot  under 
the  Constitution  be  abrogated  by  action  taken  by  an  earlier 
Legislature. 

The  only  way  open  to  either  branch  of  the  Legislature  under 
the  Constitution  to  obtain  the  assistance  of  the  judicial  depart- 
ments of  government  in  the  performance  of  the  duties  reposed 
in  it  by  the  Constitution  is  under  chapter  3,  Article  II.  That 
goes  no  further  than  to  enable  either  branch  to  secure  the 
advice  of  the  justices  of  the  Supreme  Judicial  Court  "upon 
important  questions  of  law,  and  upon  solemn  occasions."  It 
does  not  extend  to  the  determination  of  questions  of  fact.  It 
does  not  authorize  the  imposition  upon  the  courts  of  functions 
vested  by  the  Constitution  exclusively  in  other  departments  of 
government.  Case  of  Supervisors  of  Election,  114  Mass.  247; 
Boston  v.  Chelsea,  212  Mass.  127. 

The  statute  cannot  be  supported  by  chapter  1,  section  III, 
Article  XI,  of  the  Constitution.  The  final  paragraph  of  that 
article  is :  "  And  the  senate  and  house  of  representatives  may  try 
and  determine  all  cases  where  their  rights  and  privileges  are 
concerned,  and  which,  by  the  constitution,  they  have  authority 
to  try  and  determine,  by  committees  of  their  own  members,  or 
in  such  other  way  as  they  may  respectively  think  best."  It  is 
still  "the  senate  and  house  of  representatives"  which  must  hold 
the  trial  and  make  the  decision.  The  Senate  or  House  of 
Representatives  of  any  particular  Legislature  to  which  the 
question  may  be  presented  has  the  power  to  decide  whether 
to  try  such  cases  by  "committees  of  their  own  members,  or  in 
such  other  way  as  they  may  respectively  think  best."  This 
grant  of  absolute  power  cannot  be  fettered  by  the  opinion  of 
both  branches  of  some  preceding  Legislature  expressed  in  a 
statute.  Each  branch  of  the  Legislature  may  try  and  determine 
the  question  as  to  violation  of  the  corrupt  practices  act  by  a 
committee  of  its  own  members  or  doubtless  by  a  committee 
otherwise  constituted.  But  it  cannot  require  the  judiciary  as  a 
co-ordinate  department  of  government  to  hold  a  trial  and 
render  a  decision  which  in  its  nature  must  be  purely  tentative 
or  advisory  and  wholly  subject  to  its  own  review,  revision, 
retrial  or  inaction.     This  would  be  imposing  upon  the  judicial 


164  MASSACHUSETTS  ELECTION  CASES  —  1916. 

department  of  the  government  the  investigation  of  a  matter  not 
resulting  in  a  judgment,  not  finally  fixing  the  rights  of  parties 
and  not  ultimately  determining  a  state  of  acts.  It  would  subject 
a  proceeding  arising  in  a  court  to  modification,  suspension, 
annulment  or  affirmation  by  a  part  of  the  legislative  department 
of  government  before  it  would  possess  any  definitive  force.  Mani- 
festly this  is  in  contravention  of  Art.  30  of  the  Declaration  of 
Rights,  which  marks  the  entire  separation  of  the  legislative  and 
judicial  departments  of  the  government.  Denny  v.  Mattoon,  2 
Allen,  361,  379;    Opinion  of  the  Justices,  201  Mass.  609,  612. 

The  statute  cannot  be  upheld  upon  the  ground  which  supports 
the  appointment  of  commissioners  to  perform  duties  lying  close 
to  the  line  between  the  legislative  and  judicial  faculities,  but 
partaking  chiefly  of  the  latter  nature,  illustrated  by  Boston, 
Petitioner,  221  Mass.  468,  474,  and  cases  there  collected,  — 
Northampton  Bridge  Case,  116  Mass.  442;  Brayton  v.  Fall  River, 
124  Mass.  95;  County  Commissioners,  Petitioners,  140  Mass. 
181;  In  m  Metropolitan  Park  Commissioners,  Petitioners,  209 
Mass.  381;  and  similar  cases.  In  all  those  cases  the  Legislature 
reserves  no  power  of  revision,  but  the  whole  matter  proceeds  to 
a  final  judgment  in  the  courts. 

For  these  reasons  we  are  constrained  to  hold  that  so  much  of 
St.  1914,  c.  783,  sec.  10,  as  undertakes  to  impose  upon  the  courts 
the  duty  of  simple  inquiry  into  corrupt  practices  in  connection 
with  the  election  of  members  of  the  General  Court  is  contrary 
to  the  terms  of  the  Constitution.  No  opinion  is  intimated  as  to 
the  validity  of  other  parts  of  the  act.  It  is  unnecessary  to  con- 
sider the  other  questions  reported. 

It  follows  that  the  first  question,1  so  far  as  relates  to  the 
proceeding  at  bar,  must  be  answered  in  the  negative. 

So  ordered. 

The  case  was  argued  at  the  bar  in  March,  1916,  before  Rugg, 
C.J.,  Braley,  De  Cottrcy,  Pierce  and  Carroll,  JJ.,  and 
afterwards  was  submitted  on  briefs  to  all  the  justices. 

J.  P.  Wahh  {G.  F.  Grimes  with  him)  for  the  petitioners. 
H.  Parker  for  the  respondent. 

i  The  first  question  reported  by  the  three  judges  was  as  follows:  "1.  Is  St.  1914,  c.  783, 
as  far  as  it  imposes  duties  upon  this  [the  Superior]  court  with  reference  to  a  member  of  the 
Legislature,  valid?  " 


ATTY.-GEN.  V.  APPORTIONMENT  COM'rS.     SUP.  JUD.  CT.,  1916.      165 


supreme  judicial  court. 

Attorney-General  v.  Suffolk  County  Apportionment 
Commissioners. 

Henry  L.  Higginson  and  Others  v.  Same. 

Frank  N.  Nay  and  Others  v.  Same. 

Tilton  S.  Bell  v.  Same. 

Herman  Hormel  v.  Same. 

George  F.  Whipple  and  Others  v.  Same. 

Petitions  for  Writs  of  Mandamus. 

James  Donovan  v.   Same. 

W.  Prentiss  Parker  and  Others  v.  Same. 

David  T.  Montague  and  Others  v.  Same. 

George  F.  Whipple  and  Others  v.   Same. 

Petition  for  Writs  of  Certiorari. 

George  E.  Brock  v.  Same. 
Bill  in  Equity. 

(Reported  in  224  Mass.  598.) 

Suffolk,  Sept.  5,   1916  — Sept.  8,   1916.     Present,   Rtjgg,   C.J.,   Lorwg, 
Braley,  DeCourcy  and  Carroll,  JJ. 

Apportionment  Commissioners.  —  On  a  petition  by  the  Attorney-General  for  a 
writ  of  mandamus  addressed  to  the  Suffolk  County  apportionment  commissioners 
elected  under  St.  1913,  c.  835,  sec.  390,  declaring  an  apportionment  of  representa- 
tion in  the  legislative  districts  in  that  county  attempted  to  be  made  by  the  re- 
spondents to  be  void  as  not  in  conformity  with  the  Constitution,  and  ordering  them 
to  proceed  "as  soon  as  may  be''  to  divide  the  county  of  Suffolk  into  representative 
districts  so  as  to  apportion  the  number  of  representatives  assigned  to  that  county 
"equally,  as  nearly  as  may  be,  according  to  the  relative  number  of  legal  voters" 
in  the  several  districts,  a  clause  in  the  reservation  for  determination  of  the  case 
by  this  court,  stating  that,  if  the  question  whether  the  respondents  acted  in  good 
faith  was  material,  this  court  might  draw  conclusions  from  the  apportionment 
itself,  was  disregarded  by  this  court,  because  this  court  has  no  power  to  decide 
facts  in  a  proceeding  at  law,  and  the  question  of  good  faith,  if  material,  was  one 
of  fact,  and  it  was  held  that  the  case  must  be  considered  by  the  court  on  the  footing 
that  the  good  faith  of  the  commissioners  was  presumed. 

Constitutional  Law.  —  By  Article  21  of  the  Amendments  to  the  Constitution, 
which  provides  that  a  "board  of  special  commissioners  .  .  .  shall,  on  the  first 
Tuesday  of  August  next  after  each  assignment  of  representatives  to  each  county 
.  .  .  proceed,  as  soon  as  may  be,  to  divide  the  same  into  representative  districts 
of  contiguous  territory,  so  as  to  apportion  the  representation  assigned  to  each 
county  equally,  as  nearly  as  may  be,  according  to  the  relative  number  of  legal 
voters  in  the  several  districts  of  each  county,"  the  principle  of  practical  equality  of 
representation  among  all  the  voters  of  the  Commonwealth  is  established. 


166  MASSACHUSETTS  ELECTION  CASES  —  1916. 

The  Suffolk  County  apportionment  commissioners  elected  under  St.  1913, 
c.  835,  sec.  390,  in  1915,  and  in  every  tenth  year  thereafter,  who  are  directed  to 
"  so  divide  said  county  into  representative  districts  of  contiguous  territory  as  to 
apportion  the  representation  of  said  county,  as  nearly  as  may  be,  according  to  the 
number  of  voters  in  the  several  districts,"  must  perform  their  duties  as  directed  by 
Article  21  of  the  Amendments  to  the  Constitution;  and,  where  it  is  manifest  from 
the  inspection  of  an  apportionment  attempted  to  be  made  by  them  that  there  is 
grave,  unnecessary  and  unreasonable  inequality  in  the  representation  assigned  by 
them  to  different  districts,  the  Constitution  has  been  violated  and  their  attempted 
action  is  void. 

Apportionment  of  Representatives.  —  Among  the  inequalities,  which  were  held 
to  have  been  sufficient  to  make  the  attempted  apportionment  void,  was  the  appor- 
tioning to  one  district  of  two  representatives  for  3,913  voters,  and  in  another 
district  giving  only  one  representative  for  6,182  voters.  Another  inequality  was 
apportioning  one  representative  to  a  district  with  almost  5,000  voters  and  appor- 
tioning three  representatives  to  another  district  with  about  6,000  voters.  There 
were  many  other  similar  disparities  showing  gross  and  palpable  inequalities  extend- 
ing to  a  considerable  number  of  the  districts. 

Mandamus.  —  A  petition  for  a  writ  of  mandamus  addressed  to  the  Suffolk 
County  apportionment  commissioners,  who  had  filed  a  report  purporting  to  make 
an  apportionment  of  representation  in  the  legislative  districts  in  that  county  which 
was  void  as  in  violation  of  Article  21  of  the  Amendments  to  the  Constitution, 
commanding  them  to  proceed  with  the  provisions  of  the  Constitution,  affords  the 
appropriate  form  of  relief,  and  is  a  remedy  expressly  provided  by  Section  502  of 
the  statute  named  for  enforcing  the  provisions  of  that  chapter. 

The  remedy  by  mandamus  described  above  is  available  to  a  citizen  and  voter 
interested  in  the  execution  of  the  laws. 

Attorney-General.  —  In  the  case  above  described  it  was  held  that,  the  public 
interests  being  involved,  the  Attorney-General  might  institute  and  maintain  a 
petition  for  a  writ  of  mandamus  to  vindicate  the  public  right. 

Mandamus.  —  In  the  case  above  described  it  was  held  that  in  issuing  the  writ  of 
mandamus  no  specific  time  need  be  fixed  for  the  completion  by  the  commissioners 
of  their  work,  it  being  assumed  that  they  would  be  actuated  by  a  consciousness  oi 
serious,  public  duty  with  the  obligations  thereby  entailed. 

Rugg,  C.J.  These  proceedings  are  brought  to  test  the  legality 
of  the  division  into  representative  districts  of  the  fifty-four 
representatives  to  the  General  Court  apportioned  to  Suffolk 
County  by  St.  1916,  c.  270,  sec.  24.  This  division  is  required  to 
be  made  by  a  board  of  nine  commissioners  elected  by  the 
voters  of  Suffolk  County.  St.  1913,  c.  835,  sec.  390,  provides 
as  follows :  — 

"At  the  annual  state  election  in  the  year  nineteen  hundred 
and  fifteen,  and  in  every  tenth  year  thereafter,  nine  commis- 
sioners shall  be  elected  for  the  county  of  Suffolk,  for  the  per- 
formance of  the  duties  hereinafter  specified.  Five  of  said  com- 
missioners shall  be  residents  of  and  voters  in  the  city  of  Boston 
and  shall  be  elected  by  the  voters  of  that  city;  two  shall  be 
residents  of  and  voters  in  the  city  of  Chelsea  and  shall  be 
elected  by  the  voters  of  that  city;  one  shall  be  a  resident  of  and 
a  voter  in  the  town  of  Winthrop  and  shall  be  elected  by  the 


ATTY.-GEN.  V.  APPORTIONMENT  COM'RS.     SUP.  JUD.  CT.,  1916.     167 

voters  of  that  town;  and  one  shall  be  a  resident  of  and  a 
voter  in  the  town  of  Revere  and  shall  be  elected  by  the  voters 
of  that  town.  Said  commissioners  shall  hold  office  for  one  year 
from  the  first  Wednesday  of  January  next  after  their  election. 
At  their  first  meeting,  they  shall  organize  by  choosing  a  chair- 
man, who  shall  be  one  of  their  number,  and  a  clerk.  The  city 
of  Boston  shall  provide  them  with  a  suitable  office,  and  room  for 
hearings  and  shall  allow  and  pay  to  them  for  compensation  a 
sum  not  exceeding  five  hundred  dollars  each,  said  sum  to  be 
determined  by  the  governor  and  council,  and  a  further  sum  of 
not  more  than  seven  hundred  dollars  for  clerk  hire,  stationery  and 
incidental  expenses. 

"The  said  commissioners  shall,  on  the  first  Tuesday  of  August 
next  after  the  secretary  of  the  commonwealth  shall  have  certified 
to  them  the  number  of  representatives  to  which  the  county  of 
Suffolk  may  be  entitled,  as  determined  by  the  general  court, 
assemble  in  the  city  of  Boston,  and,  as  soon  as  may  be,  shall  so 
divide  said  county  into  representative  districts  of  contiguous 
territory  as  to  apportion  the  representation  of  said  county,  as 
nearly  as  may  be,  according  to  the  number  of  voters  in  the 
several  districts.  Such  districts  shall  be  so  formed  that  no  ward 
of  a  city  and  no  town  shall  be  divided,  and  no  district  shall  be  so 
formed  that  it  shall  be  entitled  to  elect  more  than  three  repre- 
sentatives. .  .  ." 

One  of  the  commissioners  has  deceased,  and  the  remaining 
eight  are  the  respondents  in  each  of  the  petitions  and  the  de- 
fendants in  the  bill  in  equity  in  which  the  Secretary  of  the 
Commonwealth  also  is  joined  as  a  defendant. 

A  report  has  been  filed  by  the  commissioners.  The  division 
into  representative  districts  therein  set  forth  is  assailed  on  the 
ground  that  it  has  not  been  made  in  accordance  with  the  re- 
quirement of  the  Constitution.  The  pertinent  provision  of  the 
Constitution  is  in  Article  21  of  the  Amendments,  and  is  as 
follows:  — ■ 

"A  census  of  the  legal  voters  of  each  city  and  town,  on  the 
first  day  of  May,  shall  be  taken  and  returned  into  the  office  of 
the  secretary  of  the  commonwealth,  on  or  before  the  last  day 
of  June,  in  the  year  one  thousand  eight  hundred  and  fifty- 
seven;  and  a  census  of  the  inhabitants  of  each  city  and  town, 
in  the  year  one  thousand  eight  hundred  and  sixty-five,  and  of 
every  tenth  year  thereafter.  In  the  census  aforesaid,  a  special 
enumeration  shall  be  made  of  the  legal  voters;  and  in  each  city, 
said  enumeration  shall  specify  the  number  of  such  legal  voters 


168  MASSACHUSETTS  ELECTION  CASES  —  1916. 

aforesaid,  residing  in  each  ward  of  such  city.  The  enumeration 
aforesaid  shall  determine  the  apportionment  of  representatives 
for  the  periods  between  the  taking  of  the  census. 

"The  house  of  representatives  shall  consist  of  two  hundred 
and  forty  members,  which  shall  be  apportioned  by  the  legis- 
lature, at  its  first  session  after  the  return  of  each  enumeration 
as  aforesaid,  to  the  several  counties  of  the  commonwealth, 
equally,  as  nearly  as  may  be,  according  to  their  relative  numbers 
of  legal  voters,  as  ascertained  by  the  next  preceding  special 
enumeration;  and  the  town  of  Cohasset,  in  the  county  of 
Norfolk,  shall,  for  this  purpose,  as  well  as  in  the  formation  of 
districts,  as  hereinafter  provided,  be  considered  a  part  of  the 
county  of  Plymouth;  and  it  shall  be  the  duty  of  the  Secretary 
of  the  commonwealth,  to  certify,  as  soon  as  may  be  after  it  is 
determined  by  the  legislature,  the  number  of  representatives  to 
which  each  county  shall  be  entitled,  to  the  board  authorized  to 
divide  each  county  into  representative  districts.  The  mayor 
and  aldermen  of  the  city  of  Boston,  the  county  commissioners 
of  other  counties  than  Suffolk,  —  or  in  lieu  of  the  mayor  and 
aldermen  of  the  city  of  Boston,  or  of  the  county  commissioners 
in  each  county,  to  be  elected  by  the  people  of  the  county,  or  of 
the  towns  therein,  as  may  for  that  purpose  be  provided  by 
law,  —  shall,  on  the  first  Tuesday  of  August  next  after  each 
assignment  of  representatives  to  each  county,  assemble  at  a 
shire  town  of  their  respective  counties,  and  proceed,  as  soon  as 
may  be,  to  divide  the  same  into  representative  districts  of 
contiguous  territory,  so  as  to  apportion  the  representation 
assigned  to  each  county  equally,  as  nearly  as  may  be,  according 
to  the  relative  number  of  legal  voters  in  the  several  districts  of 
each  county;  and  such  districts  shall  be  so  formed  that  no 
town  or  ward  of  a  city  shall  be  divided  therefor,  not  shall  any 
district  be  made  which  shall  be  entitled  to  elect  more  than 
three  representatives." 

The  court  has  jurisdiction  to  determine  whether  the  commis- 
sioners in  making  the  division  have  violated  the  requirements  of 
this  article  of  amendment  to  the  Constitution.  Scarcely  any 
right  more  nearly  relates  to  the  liberty  of  the  citizen  and  the 
independence  and  the  equality  of  the  freeman  in  a  republic 
than  the  method  and  conditions  of  his  voting  and  the  efficacy 
of  his  ballot,  when  cast,  for  representatives  in  the  legislative 
department  of  government.  It  was  said  in  the  Opinion  of  the 
Justices,  10  Gray,  613,  at  page  615,  "Nothing  can  more  deeply 


ATTY.-GEN.  V.  APPORTIONMENT  COM'RS.     SUP.  JUD.  CT.,  1916.     169 

concern  the  freedom,  stability,  the  harmony  and  success  of  a 
representative  republican  government,  nothing  more  directly 
affect  the  political  and  civil  rights  of  all  its  members  and  sub- 
jects, than  the  manner  in  which  the  popular  branch  of  its  legis- 
lative department  is  constituted."  The  right  to  vote  is  a 
fundamental  personal  and  political  right.  The  equal  right  of 
all  qualified  to  elect  officers  is  one  of  the  securities,  of  the  Decla- 
ration of  Rights,  Articles  1-9.  Unlawful  interference  with  the 
right  to  vote,  whether  on  the  part  of  public  officers  or  private 
persons,  is  a  private  wrong  for  which  the  law  affords  a  remedy, 
although  it  may  also  have  significant  political  results.  Capen 
v.  Foster,  12  Pick.  485;  Lamed  v.  Wheeler,  140  Mass.  390. 
The  right  of  every  voter  to  participate  in  the  election  of  repre- 
sentatives to  the  General  Court  "equally,  as  nearly  as  may  be," 
with  all  his  fellows  is  secured  by  the  twenty-first  amendment  to 
the  Constitution.  An  act  of  the  Legislature  limiting  or  in  any 
way  interfering  with  this  right  would  be  invalid.  See  Kinneen 
v.  Wells,  144  Mass.  497.  County  commissioners  or  special 
commissioners  in  performing  the  duties  reposed  in  them  by  the 
Constitution  stand  on  no  higher  ground  than  does  the  Legis- 
lature in  performing  its  constitutional  functions.  While  the 
right  to  vote  for  members  of  the  Legislature  is  in  a  sense  a 
political  right,  it  is  also  a  precious  personal  right.  The  duty  of 
dividing  the  authorized  number  of  representatives  among  the  legal 
voters  is  in  a  sense  political,  yet  so  far  as  it  affects  contrary 
to  the  Constitution  the  rights  of  citizens,  such  an  infringement 
is  cognizable  in  the  courts  when  presented  in  an  appropriate 
proceeding  between  proper  parties.  On  principle  the  conclusion 
is  irresistible  that  the  court  has  jurisdiction  to  redress  the  wrongs 
here  alleged. 

The  decisions  of  other  States  are  numerous  and  harmonious  to 
the  same  effect. 

The  circumstance  that  political  considerations  may  be  con- 
nected with  rights  affords  no  justification  to  courts  for  refusal 
to  adjudicate  causes  rightly  pending  before  them.  Such  a  con- 
troversy, even  though  political  in  many  of  its  aspects,  is  of 
judicial  cognizance.  Warren  v.  Mayor  and  Aldermen  of  Charles- 
town,  2  Gray,  84;  Stone  v.  Charlestown,  114  Mass.  214;  McPher- 
son  v.  Secretary  of  State,  146  U.  S.  1,  23. 

There  is  nothing  at  variance  with  this  conclusion  in  Opinion 
of  the  Justices,  10  Gray,  613.  That  discussion  was  directed 
wholly  to  the  powers  of  the  Legislature  to  correct  alleged  errors 


170  MASSACHUSETTS  ELECTION  CASES  —  1916. 

in  a  division  of  representatives.  The  jurisdiction  of  the  courts 
was  not  involved  in  any  of  the  questions  submitted  to  the 
justices.  The  words  of  the  justices  must  be  read  as  applicable 
to  the  subject  under  consideration  and  not  treated  as  of  such 
general  purport  as  to  cover  instances  not  then  before  their 
minds.  Swan  v.  Justices  of  the  Superior  Court,  222  Mass.  542, 
545.  But  it  appears  from  the  report  of  the  election  case  of 
Lothrop,  Petitioner,  Mass.  Election  Cases  (Loring  &  Russell's 
ed.),  49,  54,  in  reference  to  which  that  opinion  was  given,  that 
the  jurisdiction  of  the  Supreme  Judicial  Court  to  correct  errors 
in  such  a  case  was  assumed  by  the  legislative  committee.  More- 
over, although  the  jurisdiction  of  the  court  was  not  pertinent 
to  answers  to  the  inquiries  of  the  House  of  Representatives,  it 
there  was  said  in  substance  only  that  "the. doings  and  returns 
(of  the  county  commissioners,  of  the  mayor  and  aldermen  of 
Boston  or  of  special  commissioners)  made  conformably  to  the 
article  of  amendment"  were  conclusive.  Nothing  was  intimated 
as  to  "doings  and  returns"  manifestly  contrary  to  the  terms  of 
that  article  of  amendment  to  the  Constitution. 

The  cases  come  before  us  on  a  "report  and  reservation"  made 
by  a  single  justice.  Against  the  objection  of  the  respondents 
a  clause  was  inserted  to  the  effect  that,  "If  the  question  whether 
the  respondents  acted  in  good  faith  is  material,  the  court,  in  any 
of  the  said  proceedings  except  the  petitions  for  certiorari,  may 
draw  conclusions  from  the  apportionment  itself,  notwithstanding 
the  failure  of  the  petitioners  to  join  issue  on  the  allegations  of 
good  faith  contained  in  the  answers."  This  clause  in  the  reser- 
vation must  be  disregarded.  If  good  faith  is  material,  it  is  a 
fact  and  must  be  found  by  a  tribunal  authorized  to  try  and 
decide  facts.  This  court  has  no  power  to  decide  facts  in  a 
proceeding  at  law.  Electric  Welding  Co.  v.  Prince,  200  Mass. 
386;  Foster  v.  Boston  Elevated  Railway,  214  Mass.  61.  The  cases 
must  be  considered  on  the  footing  that  the  good  faith  of  the 
special  commissioners  is  presumed. 

The  particular  ground  of  attack  is  that  the  report  of  the 
special  commissioners  shows  that  they  have  failed  "to  divide" 
the  county  of  Suffolk  "into  representative  districts  .  .  .  .  so  as  to 
apportion  the  representation  assigned  to"  that  county  "equally, 
as  nearly  as  may  be,  according  to  the  relative  number  of  legal 
voters  in  the  several  districts."  Article  21  of  the  Amendments 
to  the  Constitution.  The  great  principle  established  by  this 
amendment  is  equality  of  representation  among  all  the  voters  of 


ATTY.-GEN.  V.  APPORTIONMENT  COM'RS.     SUP.  JUD.  CT.,  1916.     171 

the  Commonwealth.  That  is  a  fundamental  principle  of  repre- 
sentative government.  It  is  pre-eminently  so  in  a  State  whose 
Declaration  of  Rights  declares  that  "all  men  are  born  free  and 
equal,"  and  in  a  nation  whose  Declaration  of  Independence 
asserts  that  "all  men  are  created  equal."  There  can  be  no 
equality  among  citizens  if  the  vote  of  one  counts  for  consider- 
ably more  than  that  of  another  in  electing  public  officers.  The 
true  spirit  and  meaning  of  the  Constitution  is  that  each  voter 
has  an  equal  voice  in  the  enactment  of  laws  and  in  the  election 
of  officers  of  the  State.  Such  equality  must  be  secured  in  all 
laws  for  the  choosing  of  representatives  in  the  General  Court,  or 
the  Constitution  is  violated.  One  voter  or  one  group  of  voters 
cannot  be  given  a  greatly  preponderating  power  in  shaping 
legislation  through  the  election  of  a  representative  or  represent- 
atives by  a  disproportionately  small  number  of  voters  as  com- 
pared with  another  group,  and  still  the  equality  between  voters 
secured  by  the  Constitution  be  preserved.  Inequality  of  rep- 
resentation apparent  on  the  face  of  the  apportionment  offends 
against  this  constitutional  provision,  —  a  provision  of  the  very 
essence  of  any  conception  of  equality  among  voters,  each  of 
whom  is  the  peer  in  political  right  of  every  other. 

Absolute  equality  of  representation  is  not  required  by  the 
article  of  amendment.  There  are  other  inflexible  conditions  of 
the  apportionment  which  must  be  observed  and  which  prevent 
exactness  of  equality.  The  representative  districts  must  be 
within  the  several  counties;  they  cannot  be  formed  by  the  di- 
vision of  towns  or  wards  of  cities.  They  must  be  made  up  of 
contiguous  territory,  and  no  district  can  be  given  more  than  three 
representatives.  But  within  these  limitations  there  must  be  the 
nearest  approximation  to  equality  of  representations  which  is 
reasonably  practicable.  The  words  of  the  amendment,  that  the 
representatives  must  be  apportioned  upon  the  basis  of  equality 
"as  nearly  as  may  be,"  does  not  mean  mathematical  accuracy  of 
equality.  They  do  not  aptly  express  that  idea.  The  words 
import  some  flexibility  in  the  division.  Something  is  left  to  the 
sound  judgment  of  the  body  charged  with  making  the  apportion- 
ment and  division. 

But  the  rule  established  by  the  Constitution  is  plain.  The 
total  number  of  two  hundred  and  forty  members  of  the  House 
of  Representatives  must  first  be  divided  by  the  Legislature  be- 
tween the  several  counties  "equally,  as  nearly  as  may  be, 
according  to  their  relative  numbers  of  legal  voters,"  with  the  ex- 
ception of  the  town  of  Cohasset,  which,  although  in  the  county 


172  MASSACHUSETTS  ELECTION  CASES  —  1916. 

of  Norfolk,  is  for  this  purpose  to  be  treated  as  a  part  of  the 
county  of  Plymouth.  The  commissioners  are  then  to  make  the 
division  of  the  several  counties  into  representative  districts.  In 
doing  this  five  general  rules  are  laid  down  by  the  amendment: 
(1)  They  must  proceed  within  their  respective  counties,  with  the 
single  exception  of  Cohasset.  (2)  No  town  or  ward  of  a  city 
can  be  divided.  (3)  The  territory  of  each  district  must  be  con- 
tiguous. (4)  No  more  than  three  representatives  can  be  as- 
signed to  one  district.  (5)  The  representatives  must  be  divided 
so  that  "as  nearly  as  may  be"  the  same  number  of  voters  shall 
in  every  instance  be  entitled  to  an  equal  representation  in  the 
House.  These  five  mandates  all  stand  on  the  same  footing. 
One  is  no  more  imperative  than  another.  The  only  guide  for 
determining  equality  to  which  resort  may  be  had  under  the 
Constitution  is  the  "numbers  of  legal  voters,  as  ascertained  by 
the  next  preceding  special  enumeration,"  provided  for  by  the 
first  paragraph  of  the  Twenty-first  Article  of  Amendment. 
That  article  says  that  that  enumeration  "shall  determine  the 
apportionment  of  representatives  for  the  periods  between  the 
taking  of  the  census."  It  would  be  hard  to  conceive  words  ex- 
pressive of  a  more  positive  and  unmistakable  command.  Its 
fundamental  idea  is  that  the  special  enumeration  of  legal  voters 
alone  shall  be  considered  in  making  the  apportionment  and  di- 
vision. Opinion  of  the  Justices,  142  Mass.  601,  604;  Opinion  of 
the  Justices,  157  Mass.  595. 

In  the  performance  of  the  duty  of  providing  equal  representa- 
tion within  any  county,  the  commissioners  naturally,  if  not  neces- 
sarily, would  divide  the  whole  number  of  legal  voters  in  the 
county  by  the  number  of  representatives  allotted  to  that  county. 
Thus  the  unit  of  representation  or  the  ratio  between  the  voters 
and  the  representatives  is  found.  Upon  this  unit  or  ratio  the 
representative  districts  must  be  formed,  each  having,  as  nearly 
as  may  be,  in  view  of  the  other  mandatory  requirements  of  the 
amendment,  a  number  of  legal  voters  equal  to  the  unit  or  ratio 
thus  found  for  one  representative,  or  twice  that  number  for  two 
representatives,  or  three  times  that  number  for  three  represent- 
atives. Equality  in  the  ratio  between  voters  and  representatives 
amongst  the  several  districts  is  the  command  of  the  people  as 
expressed  in  the  Constitution.  The  commissioners  are  bound  by 
the  most  sacred  considerations  of  official  duty  to  follow  this  plain 
command  of  the  Constitution  in  forming  the  districts  and  in 
dividing  between  the  districts  the  number  of  representatives. 
This  is  in  substance  the  statement  of  the  duty  of  the  officers 


ATTY.-GEN.  V.  APPORTIONMENT  COM'RS.     SUP.  JUD.  CT.,  1916.     173 

charged  with  the  duty  of  forming  representative  districts  and 
dividing  among  them  the  representatives  set  out  in  Opinion  of 
the  Justices,  10  Gray,  613,  619.  If  each  board  of  officers  in  each 
of  the  counties  follows  this  plain  rule  of  the  Constitution,  then 
there  will  be  secured  to  every  voter  throughout  the  State  that 
equality  of  influence  in  shaping  legislation  which  it  is  the  in- 
dubitable design  of  the  Constitution  to  maintain. 

It  is  not  every  inequality  between  the  several  representative 
districts  which  will  be  fatal  in  a  constitutional  sense.  It  is  in- 
evitable that  there  must  be  in  the  several  districts  some  vari- 
ation from  the  unit  of  representation  found  by  dividing  the 
legal  voters  of  the  county  by  the  number  of  representatives  ap- 
portioned to  that  county.  These  variations  may  be  augmented 
where  there  are  numerous  towns  and  cities  with  different  num- 
bers of  wards  and  of  legal  voters.  The  difficulties  may  be  con- 
siderable. There  is  abundant  room  for  the  exercise  of  reason 
and  judgment  in  the  formation  of  the  districts  and  in  disposition 
to  be  made  of  the  excess  or  deficiency  of  the  number  of  voters 
as  compared  with  the  unit  of  representation  or  ratio  between 
voters  and  representatives,  which  unavoidably  must  be  found 
even  with  the  most  conscientious  efforts.  Many  questions  may 
arise  which  cannot  be  solved  by  computation  and  which  may 
require  the  exercise  of  a  high  degree  of  sagacity.  A  wide  dis- 
cretion must  of  necessity  be  exercised  by  the  commissioners. 
Doubtless  some  apparent" inequalities,  not  amounting  to  a  gross 
disparity,  might  be  explained  by  reference  to  the  complexities 
arising  from  town  and  ward  lines  and  the  different  numbers  of 
legal  voters  found  in  each.  Not  every  deviation  from  exact 
uniformity  in  the  ratio  between  legal  voters  and  representatives 
would  justify  resort  to  the  courts  or  warrant  the  conclusion  that 
the  Constitution  had  been  ignored.  The  court  would  be  slow 
to  set  aside  an  apportionment  which  appeared  by  an  exercise  of 
sound  discretion  to  have  followed  the  requirements  of  the  Con- 
stitution and  to  be  an  approximation  to  equality.  But  where  it 
is  manifest  on  its  face  from  a  mere  inspection  of  the  apportion- 
ment that  the  Constitution  has  been  transgressed,  then  the 
division  made  by  the  commissioners  cannot  stand.  When  fair- 
minded  men  from  an  examination  of  the  apportionment  and  di- 
vision can  Entertain  no  reasonable  doubt  that  there  is  a  grave, 
unnecessary  and  unreasonable  inequality  between  different  dis- 
tricts, the  Constitution  has  been  violated  and  it  is  the  duty  of 
the  court  so  to  declare.  Baird  v.  Supervisors  of  Kings  County, 
138  N.  Y.  95,  114. 


174  MASSACHUSETTS  ELECTION  CASES  —  1916. 

Tried  by  this  test  there  can  be  no  uncertainty  in  the  result 
to  be  reached  in  the  case  at  bar.  The  inequality  is  obvious  and 
indisputable.  It  is  momentous,  excessive  and  might  have  been 
avoided.  No  argument  is  needed.  It  is  demonstrated  by  a 
statement  of  the  facts.  The  unit  of  representation  or  ratio  of 
legal  voters  to  representatives  in  Suffolk  County  obtained  by 
dividing  its  175,890  legal  voters  by  the  54  representatives  is 
3,257|,  and  may  be  regarded  for  convenience  as  3,258.  Where 
a  less  number  are  given  one  representative  the  inequality  increases 
their  voting  power,  and  where  a  larger  number  are  given  one 
representative  the  inequality  diminishes  their  voting  power  in  the 
House  of  Representatives.  The  commissioners  divided  Boston 
(which  is  by  far  the  largest  part  of  Suffolk  County)  into  repre- 
sentative districts  by  adopting  as  such  districts  the  several  wards, 
except  that  they  combined  wards  19  and  21  into  one  district. 
Therefore  no  such  complexity  arises  as  might  exist  in  the  com- 
bination of  towns  or  of  towns  with  one  or  more  wards  of  a  city. 
The  most  glaring  inequality  is  between  District  No.  26,  with 
3,913  legal  voters,  to  which  two  representatives  are  given,  or 
one  for  1,957  voters,  and  District  No.  16,  with  6,182  legal  voters, 
to  which  one  representative  is  given.  A  voter  in  District  No. 
26  thus  would  have  more  than  three  times  the  voting  power  of 
a  voter  in  District  No.  16  in  the  election  of  representatives  to 
the  General  Court.  The  variation  from  the  unit  of  legal  voters 
for  one  representative  as  found  above  is  from  1,301  below  in 
District  No.  26  to  2,924  above  in  District  No.  16.  The  dis- 
parity between  the  two  is  more  than  3  to  1.  Any  attempt  to 
conform  to  the  equality  of  representation  required  by  the  Con- 
stitution as  to  these  two  districts  would  have  reversed  the  ap- 
portionment and  given  two  representatives  to  District  No.  16 
and  one  to  District  No.  26.  Districts  Nos.  24  and  25  contain, 
respectively,  4.842  and  4,282  voters,  and  each  is  given  one 
representative,  while  Districts  Nos.  9  and  10,  containing,  respec- 
tively, 6,151  and  6,056  voters,  are  each  given  three  representa- 
tives, being  one  representative  to  2,051  and  2,018  voters,  re- 
spectively, or  a  disparity  of  more  than  2  to  1  in  each  instance. 
Districts  Nos.  14,  17,  18,  20  and  22,  with  voters  varying  from 
6,105  to  5,666,  but  no  one  of  them  equaling  in  number  the  voters 
of  District  No.  16  are  each  given  two  representatives,  a  dis- 
parity of  more  than  2  to  1  as  compared  with  District  No.  16, 
which  is  given  only  one  representative.  The  two  largest  dis- 
tricts, Nos.  7  and  19,  containing,  respectively,  10,714  and 
11,571    voters,    are   given   two   representatives   each,    while    Dis- 


ATTY.-GEN.  V.  APPORTIONMENT  COM'RS.     SUP.  JUD.  CT.,  1916.     175 

tricts  Nos.  5,  9  and  10,  each  considerably  smaller,  and  contain- 
ing, respectively,  7,946,  6,151  and  6,056,  each  are  given  three 
representatives.  Three  representatives  to  each  of  the  two 
largest  districts  would  have  given  in  the  smaller  of  the  two  one 
representative  to  3,571  legal  voters,  or  313  more  than  the  unit, 
while  in  the  largest  of  those  to  which  three  have  been  given 
there  is  one  representative  for  only  2,649,  or  611.  less  than  the 
unit,  and  in  the  smallest  of  those  to  which  three  have  been 
given  there  is  one  representative  for  2,019  voters,  or  1,239  below 
the  unit  of  representation.  Plainly  any  effort  at  an  approxima- 
tion to  equality  would  have  given  three  representatives  to  each 
of  the  two  largest  districts.  District  No.  6,  with  8,618  voters, 
is  given  two  representatives,  while,  as  just  pointed  out,  three 
districts  with  a  less  number  of  voters  are  given  three  representa- 
tives. Three  representatives  to  District  No.  6  would  have  been 
one  for  2,873  voters,  or  only  385  below  the  unit,  a  very  ap- 
preciably less  number  below  the  unit  than  appears  in  Districts 
Nos.  3,  4,  5,  9,  10,  20,  22  and  26.  Three  representatives  have 
been  assigned  to  District  No.  9  and  also  to  District  No.  10,  but 
the  population  of  each,  being  6,151  and  6,056,  respectively, 
shows  that,  if  given  two  representatives,  they  still  would  have  a 
larger  representation  according  to  legal  voters  than  the  correct 
ratio. 

These  references  to  the  report  of  the  commissioners  show  such 
numerous  and  flagrant  deviations  from  equality  of  representation 
that  it  is  impossible  to  reconcile  the  apportionment  with  the 
constitutional  requirement.  The  inequality  is  gross  and  palpable 
and  extends  to  a  considerable  number  of  districts.  Even  a  cur- 
sory examination  of  the  report  would  show  that  a  far  more 
equal  apportionment  might  have  been  made  by  following  the 
plain  mandate  of  the  Constitution. 

The  conclusion  is  irresistible  that  the  constitutional  require- 
ment of  equality  has  been  ignored.  It  is  not  open  to  reasonable 
controversy.  Tried  by  the  standard  of  equality  of  representa- 
tion fixed  by  the  Constitution,  the  result  reached  by  the  Com- 
missioners appears  arbitrary.  It  has  been  urged  that  the  com- 
missioners have  been  hampered  by  ward  lines.  But  they  are 
not  responsible  for  the  ward  lines.  These  have  been  established 
by  independent  authority,  and  the  commissioners  must  accept 
them  as  they  find  them.  Fitzgerald  v.  Mayor  of  Boston,  220 
Mass.  503.  They  must  make  a  determination  of  the  nearest 
practicable  approach  to  equality  of  representation  on  the  exist- 


176  MASSACHUSETTS  ELECTION  CASES  —  1916. 

ing  ward  lines.  The  report  of  the  commissioners,  being  plainly 
not  conformable  to  the  Constitution,  has  no  validity. 

It  has  been  argued  ably  in  behalf  of  the  commissioners  that 
the  grave  results  which  will  flow  from  declaring  the  report  null 
and  void  should  cause  hesitation  in  sustaining  the  petitioners' 
contentions.  These  considerations  may  be  entitled  to  weight  in 
determining  whether  a  constitutional  mandate  has  been  violated. 
But  when  once  it  has  become  evident  beyond  a  doubt  that  the 
Constitution  has  been  infringed,  and  that  rights  indisputably 
secured  by  it  have  been  trampled,  then  there  is  no  other  way 
but  to  maintain  the  Constitution  when  relief  is  promptly  sought. 
No  consequence  of  adherence  to  the  Constitution  can  be  so  evil 
as  a  failure  to  abide  by  its  terms  under  the  circumstances  here 
disclosed. 

Mandamus  affords  the  appropriate  form  of  relief.  It  is  the 
remedy  to  which  resort  usually  is  had  to  set  aside  the  illegal 
performance  of  duty  and  to  compel  the  performance  of  duty 
according  to  law,  by  public  officers  entrusted  with  discretionary, 
administrative  or  political  functions  when  it  is  their  duty  to 
act.  Flanders  v.  Roberts,  182  Mass.  524,  529;  Cox  v.  Segee, 
206  Mass.  380;  Money  weight  Scale  Co.  v.  McBride,  199  Mass. 
503,  505;-  Attorney-General  v.  Boston,  123  Mass.  460,  479;  Rea 
v.  Aldermen  of  Everett,  217  Mass.  427;  Luce  v.  Board  of  Ex- 
aminers of  Dukes  County,  153  Mass.  108;  Keough  v.  Aldermen  of 
Holyoke,  156  Mass.  403;  Cheney  v.  Barker,  198  Mass.  356,  367; 
People  v.  Ammenwerth,  197  N.  Y.  340.  It  is  a  remedy  expressly 
provided  by  St.  1913,  c.  835,  sec.  502,  for  the  enforcement  of  the 
provisions  of  the  very  act,  under  section  390  of  which  these 
commissioners  were  elected,  and  according  to  which  they  must 
perform  their  duties.  It  has  been  the  remedy  granted  in  most 
of  the  case  cited  earlier  in  this  opinion  as  to  the  jurisdiction  of 
the  court.  It  is  available  in  proper  cases  to  an  individual  who  is 
a  citizen  and  voter  and  thus  interested  in  the  execution  of  the 
laws.     Brewster  v.  Sherman,  195  Mass.  222. 

Where  the  public  interests  are  involved,  the  Attorney-General 
may  institute  a  petition  for  mandamus  to  vindicate  the  public 
right.  Attorney-General  v.  City  Council  of  Lawrence,  111  Mass. 
90;  Attorney-General  v.  Boston,  123  Mass.  460,  478;  Wellington, 
Petitioner,  16  Pick.  87,  105.  No  discussion  is  needed  to  show 
that  the  composition  of  the  House  of  Representatives,  according 
to  the  requirement  of  the  Constitution,  is  a  matter  of  public 
concern. 


ATTY.-GEN.  V.   APPORTIONMENT  COM'RS.     SUP.  JUD.  CT.,  1916.     177 

The  commissioners  are  still  in  office.  By  the  express  terms  of 
sec.  390  of  St.  1913,  c.  835,  "Said  commissioners  shall  hold 
office  for  one  year  from  the  first  Wednesday  of  January  next 
after  their  election."  These  commissioners  were  elected  in  1915. 
The  report  which  they  have  already  filed  is  a  nullity.  There- 
fore they  have  not  performed  their  duty  and  are  not  fundi 
officio.  It  is  now  their  plain  duty  to  make  a  division  and  ap- 
portionment according  to  the  Constitution.  They  are  amenable 
to  the  court  to  this  end. 

It  has  been  urged  that  a  special  mandate  be  issued  to  the 
commissioners  fixing  a  time  within  which  a  new  and  legal  ap- 
portionment shall  be  filed.  Doubtless  the  public  exigency  is 
great.  The  nomination  and  election  of  representatives  to  the 
Legislature  from  Suffolk  County  during  the  current  year  ap- 
parently can  be  accomplished  only  by  the  enactment  of  a 
special  statute,  for  the  time  provided  by  the  existing  law  for 
filing  nomination  papers  expired  before  the  present  cases  were 
entered  in  this  court.  St.  1913,  c.  835,  sees.  118,  120.  A  special 
statute  to  bring  about  this  result  can  be  enacted  only  by  a 
special  session  of  the  Legislature.  But  it  cannot  be  doubted 
that  the  commissioners  will  proceed  with  all  speed  to  the  per- 
formance of  their  duties  in  the  light  of  the  rules  here  laid  down. 
This  must  be  presumed  in  their  favor.  They  must  at  present  be 
familiar  with  all  the  facts  which  will  enable  them  forthwith  to 
act  in  conformity  to  the  Constitution  and  laws.  No  specific 
time  need  now  be  fixed  for  the  completion  of  their  work.  It 
must  be  assumed  that  they  will  be  actuated  by  a  solemn  con- 
sciousness of  serious  public  duty,  with  all  the  obligations  thereby 
entailed. 

Since  the  several  individual  petitioners  for  writs  of  mandamus 
appear  equally  entitled  to  relief,  and  since  only  one  order  need 
be  made,  the  remedy  may  be  granted  in  the  petition  of  the 
Attorney-General  for  mandamus.  Let  the  entry  be  in  that 
cause  in  substance,  that  the  division  and  apportionment  of  the 
county  of  Suffolk  into  representative  districts  already  made  and 
filed  by  the  commissioners  is  void  as  not  in  conformity  to  the 
Constitution,  and  that  the  commissioners  must  proceed  "as 
soon  as  may  be"  to  divide  the  county  of  Suffolk  into  repre- 
sentative districts  so  as  to  apportion  the  number  of  repre- 
sentatives assigned  to  that  county  "equally,  as  nearly  as  may  be, 
according  to  the  relative  number  of  legal  voters"  in  the  several 
districts,  and  otherwise  in  conformity  to  the  Constitution,  and 


178  MASSACHUSETTS  ELECTION  CASES  —  1916. 

to  make  due  report  thereof  as  required  by  said  article.  Any- 
party  may  apply  for  further  direction  and  relief.  In  each  of  the 
other  petitions  for  mandamus  the  entry  may  be,  demurrer  over- 
ruled and  petition  dismissed  without  prejudice,  for  the  reason 
that  adequate  relief  is  granted  in  the  petition  brought  by  the 
Attorney-General.  In  the  petitions  for  certiorari  the  entry 
may  be,  petitions  dismissed.  The  bill  in  equity  may  be  dis- 
missed. 

So  ordered. 

TV.  A.  Bute  (T.  J.  Ahem  with  him)  for  the  commissioners. 

TV.  H.  Hitchcock,  Assistant  Attorney-General  (C.  TV.  Mulcahy 
with  him)  for  the  Attorney-General. 

N.  Matthews  (F.  G.  Goodale  and  J.  E.  Searle  with  him)  for  the 
individual  petitioners  and  the  plaintiff  in  the  suit  in  equity. 


DONOVAN  V.  APPORTIONMENT  COM'rS.      SUP.  JUD.  CT.,  1916.       179 


supreme  judicial  court. 

James  Donovan  v.  Suffolk  County  Apportionment  Com- 
missioners. 

Herman  Hormel  v.  Same. 

(Reported  in  225  Mass.  55.) 

Suffolk,   Sept.  26,    1916  — Oct.   5,    1916.     Present,   Rugg,   C.J.,   Loring, 
Braley,  Crosby,  Pierce  and  Carroll,  JJ. 

Constitutional  Law.  —  An  attempted  apportionment  of  representation  in  the 
legislative  districts  of  Suffolk  County  by  commissioners  elected  under  St.  1913, 
c.  835,  sec.  390,  which  allots  three  representatives  to  7,946  voters  and  only  two 
representatives  to  8,613  voters,  and  allots  two  representatives  to  4,854  voters 
and  only  one  representative  to  5,596,  is  void,  because  it  does  not  apportion  the 
representatives  assigned  to  Suffolk  County  "equally,  as  nearly  as  may  be,  accord- 
ing to  the  relative  number  of  legal  voters,"  as  required  by  Article  21  of  the 
Amendments  to  the  Constitution. 

Apportionment  of  Representatives.  —  A  petition  for  a  writ  of  mandamus  ad- 
dressed to  the  Suffolk  County  apportionment  commissioners  declaring  void  an 
attempted  apportionment  of  representation  in  the  legislative  districts  of  that 
county,  and  ordering  the  commissioners  to  perform  their  duty  in  conformity  to 
Article  21  of  the  Amendments  to  the  Constitution,  may  be  maintained  by  a  voter 
in  a  district  against  which  discrimination  was  made  in  the  attempted  apportion- 
ment. 

Evidence.  —  Upon  the  question  of  granting  such  a  petition  evidence  as  to  the 
reasons  that  influenced  the  commissioners  in  making  the  apportionment  sought 
to  be  set  aside  is  immaterial,  and  the  report  of  the  commissioners  must  be  judged 
by  what  appears  on  its  face  in  the  light  of  the  facts  judicially  known  to  the  court. 

Rugg,  C.J.  These  two  petitions  for  writs  of  mandamus  are 
brought  to  set  aside  a  report  of  the  commissioners  (elected  ac- 
cording to  St.  1913,  c.  835,  sec.  390)  dividing  Suffolk  County 
into  representative  districts  and  apportioning  among  them  the 
number  of  representatives  allotted  under  St.  1916,  c.  270,  sec.  24, 
on  the  ground  that  it  violates  the  rights  of  the  petitioners  secured 
by  Article  21  of  the  Amendments  to  the  Constitution. 

Since  the  decision  of  Attorney-General  v.  Apportionment  Com- 
missioners, 224  Mass.  598,  wherein  it  was  necessary  to  declare 
their  first  report  manifestly  contrary  to  the  provisions  of  the 
Constitution,  the  commissioners  have  filed  this  new  and  second 
report  of  apportionment. 

The  present  report  is  assailed  as  to  four  districts,  each  con- 
terminous with  a  ward  of  Boston.  District  No.  3,  containing 
4,854  legal  voters,  is  given  two  representatives,  or  one  for  2,427 
legal  voters.     District  No.  5,  with  7,946  legal  voters,  is  given 


180  MASSACHUSETTS  ELECTION  CASES  —  1916. 

three  representatives.  District  No.  6,  with  8,618  legal  voters,  is 
given  two  representatives.  District  No.  23,  with  5,596  legal 
voters,  is  given  one  representative.  The  disparity  between  the 
smallest  and  largest  number  of  legal  voters  for  one  representa- 
tive is  the  difference  between  2,427  in  District  No.  3,  and  5,596 
in  District  No.  23,  or  3,169.  Each  voter  in  Districts  Nos.  3  and 
5  is  given  more  than  twice  the  voting  power  for  representatives 
in  the  General  Court  given  to  each  voter  in  District  No.  23. 
District  No.  5  is  given  one  more  representative  than  is  given  to 
672  more  legal  voters  in  District  No.  6.  District  No.  3  is  given 
one  more  representative  than  is  given  to  District  No.  23,  with 
742  more  voters. 

The  mandate  of  the  Constitution  is  that  the  county  shall  be 
divided  "into  representative  districts  ...  so  as  to  apportion  the 
representation  assigned  .  .  .  equally,  as  nearly  as  may  be,  ac- 
cording to  the  relative  number  of  legal  voters  in  the  several  dis- 
tricts." It  is  manifest  that  the  constitutional  mandate  has  not 
been  followed  in  this  report.  It  is  not  an  approximation  to 
equally  allot  three  representatives  to  7,946  voters  and  only  two 
representatives  to  8,618  voters,  and  to  allot  two  representatives 
to  4,854  voters  and  one  representative  to  5,596  voters.  The 
number  of  these  representatives  is  in  inverse  proportion  to  the 
number  of  voters.  It  requires  no  argument  to  demonstrate  that 
a  reversal  of  this  allotment  would  be  a  much  nearer  approach 
to  equality.  This  report  confers  special  power  in  the  election  of 
representatives  to  voters  in  favored  districts  as  compared  with 
voters  in  other  districts  against  which  discrimination  is  made. 
This  disparity  in  favor  of  the  privileged  districts  as  against  the 
disparaged  districts  is  not  insignificant  nor  negligible,  but,  be- 
sides the  additional  discriminatory  representation  given  to  each 
favored  district,  is  672  in  one  instance  and  742  in  another,  in 
themselves  very  considerable  numbers  as  compared  with  3,258 
which  is  the  representative  unit  of  Suffolk  County. 

Whenever  this  kind  of  inequality  of  apportionment  has  been 
before  the  courts  it  has  been  held  to  be  contrary  to  the  Constitu- 
tion. It  has  been  said  to  be  "arbitrary  and  capricious  and 
against  the  vital  principle  of  equality."  Supervisors  of  Houghton 
County  v.  Secretary  of  State,  92  Mich.  638,  647,  653;  Giddings  v. 
Secretary  of  State,  93  Mich.  1,  13;  Parker  v.  State,  133  Ind.  178, 
197;  Denney  v.  State,  144  Ind.  503,  535.  See,  also,  Goodrich  v. 
Lunenburg,  9  Gray,  38,  and  Stone  v.  Bean,  15  Gray,  42.  This 
report  does  not  apportion  the  representatives  assigned  to  Suffolk 
County  "equally,  as  nearly  as  may  be,  according  to  the  relative 


DONOVAN  V.  APPOKTIONMENT  COM'KS.      SUP.  JUD.  CT.,  1916.      181 

number  of  legal  voters."  The  inequality  disclosed  on  the  face  of 
this  report  is  grave  and  might  have  been  avoided  to  a  con- 
siderable degree  if  the  rule  established  by  the  Constitution  had 
been  heeded.  It  is  not  in  accordance  with  the  Constitution.  It 
is  contrary  to  the  principles  discussed  at  length  in  Attorney- 
General  v.  Apportionment  Commissioners,  224  Mass.  598. 

The  petitioners  are  entitled  to  maintain  the  present  petitions. 
They  are  voters  in  districts  against  which  discrimination  is  made. 
Attorney-General  v.  Apportionment  Commissioners,  224  Mass.  598. 

The  single  justice1  heard  evidence  as  to  the  reasons  which 
influenced  the  commissioners  in  making  the  apportionment,  and 
found  certain  facts  to  be  considered  "if  deemed  material  by  the 
full  court."  We  are  of  opinion  that  evidence  is  not  material 
upon  this  point.  The  commissioners  act  as  independent  officers 
in  the  performance  of  a  duty  imposed  by  the  Constitution.  No 
provision  is  made  for  a  revision  of  their  conduct  or  a  review  of 
their  report.  It  stands  unless  manifestly  contrary  to  the  Consti- 
tution and  therefore  a  nullity.  The  report  is  entitled  to  all  the 
presumptions  which  ordinarily  are  made  in  favor  of  the  constitu- 
tionality of  a  statute.  See  Commonwealth  v.  Boston  &  Northern 
Street  Railway,  212  Mass.  82,  86;  Commonwealth  v.  Moore,  214 
Mass.  19,  24.  No  evidence  is  received  as  to  the  motives  or  pur- 
poses of  members  of  the  Legislature  in  enacting  a  statute.  Good 
intentions  of  commissioners  cannot  make  valid  a  report  on  its 
face  obnoxious  to  the  requirements  of  the  Constitution.  The 
report  must  be  judged  by  what  appears  on  its  face  in  the  light 
of  facts  of  which  the  court  can  take  notice. 

Let  the  entry  be,  in  substance,  that  the  present  division  and 
apportionment  of  the  county  of  Suffolk  into  representative  dis- 
tricts, made  and  filed  by  the  commissioners,  is  void  as  not  in 
conformity  to  the  Constitution,  and  that  the  commissioners  pro- 
ceed "as  soon  as  may  be"  to  divide  the  county  of  Suffolk  into 
representative  districts  so  as  to  apportion  the  number  of  repre- 
sentatives assigned  to  that  county  "equally,  as  nearly  as  may 
be,  according  to  the  relative  number  of  legal  voters"  in  the 
several  districts,  and  otherwise  in  conformity  to  the  Constitu- 
tion and  to  Article  21  of  the  Amendments  to  the  Constitution, 
and  to  make  due  report  thereof  as  required  by  said  article  of 
amendment. 

So  ordered. 

1  De  Courcy,  J.,  who  with  the  consent  of  counsel  reported  the  cases  for  determination  by  the 
full  court. 


182  MASSACHUSETTS  ELECTION  CASES  —  1916. 

The  cases  were  argued  at  the  bar  in  September,  1916,  before 
Rugg,  C.J.,  Loring,  Bralet,  Pierce  and  Carroll,  JJ.,  and 
afterwards  was  submitted  on  briefs  to  all  the  justices  except 
De  Courcy,  J. 

N.  Matthews  and  A.  D.  Hill  (F.  G.  Goodale  with  them)  for  the 
petitioners. 

W.  A.  Buie  for  the  respondents. 


McGLUE  V.  COUNTY  COMMISSIONERS,  ESSEX.     SUP.  JUD.  CT.,  1916.    183 
SUPREME   JUDICIAL   COURT. 

Charles  H.  McGlue  v.  County  Commissioners  of  Essex. 

(Reported  in  225  Mass.  59.) 

Essex,   Sept.   26,    1916  — Oct.   5,    1916.     Present,   Rtjgg,   C.J.,   Loring, 
Braley,  Crosby,  Pierce  and  Carroll,  JJ. 

Constitutional  haw.  —  A  report  of  the  Essex  County  commissioners,  made  under 
Article  21  of  the  Amendments  to  the  Constitution,  of  the  division  of  that  county 
into  representative  districts  and  the  apportionment  among  those  districts  of  the 
representatives  allotted  to  them  by  St.  1916,  c.  270,  sec.  24,  can  be  called  in  ques- 
tion in  the  courts  only  by  the  Attorney-General  representing  the  public,  or  by 
one  who  shows  that  his  constitutional  rights  have  been  impaired. 

Apportionment  of  Representatives.  —  Accordingly  a  voter  in  a  legislative  district 
of  that  county  against  which  no  unjust  discrimination  has  been  made  cannot  main- 
tain a  petition  for  a  writ  of  mandamus  to  set  aside  such  a  report  of  the  county 
commissioners  on  account  of  alleged  discrimination  against  other  districts. 

Upon  a  petition  by  a  voter  of  legislative  District  No.  14  of  Essex  County  against 
the  county  commissioners  of  that  county  for  a  writ  of  mandamus  to  set  aside  their 
report  apportioning  the  legislative  representation  in  that  county,  it  appeared  that 
District  No.  14,  as  defined  by  the  commissioners,  comprised  Wards  3  and  4  of 
Lynn  and  the  town  of  Nahant,  and  that  three  representatives  were  apportioned 
to  the  district,  giving  one  representative  for  each  3,414  voters,  which  was  only 
174  voters  more  than  the  unit  of  representation  for  the  whole  county,  and  that 
the  county  contained  twenty-seven  towns,  which  could  not  be  divided,  and  seven 
cities  composed  of  forty-six  wards,  which  could  not  be  divided,  and  it  was  held, 
that  the  petition  must  be  dismissed;  because  the  excess  of  174  voters  above  the 
representative  unit  did  not  show  that  the  petitioner's  constitutional  rights  had 
been  violated. 

Rugg,  C.J.  This  is  a  petition  by  a  voter  in  Essex  County 
against  the  county  commissioners  of  that  county  for  a  writ  of 
mandamus  to  set  aside  the  report  of  the  division  of  Essex 
County  into  representative  districts  and  the  apportionment 
among  those  districts  of  the  thirty-one  representatives  allotted 
to  that  county  by  St.  1916,  c.  270,  sec.  24,  made  by  the  county 
commissioners  under  Article  21  of  the  Amendments  to  the 
Constitution.1  The  ground  alleged  in  the  petition  is  that  by  the 
report  the  constitutional  right  of  the  petitioner  "to  vote  for  as 
many  representatives,  as  nearly  as  may  be,  as  the  voters  in  the 
other  districts  of"  the  county  has  been  violated.  The  petitioner 
attacks  numerous  districts  of  the  division  and  the  apportionment 
of  representatives  thereto. 

The  right  of  the  petitioner  to  invoke  the  aid  of  the  court  to 
set  aside  this  report  of  division  and  apportionment  is  challenged 

1  The  case  was  heard  by  De  Courcy,  J.,  who  at  the  request  of  the  parties  reported  it  for  deter- 
mination by  the  full  court. 


184  MASSACHUSETTS  ELECTION  CASES  —  1916. 

by  the  commissioners.  It  is  a  general  principle  that  no  one  can 
question  the  constitutionality  of  a  public  act  except  one  whose 
rights  are  impaired  thereby.  It  is  elementary  that  courts  have 
no  power  to  inquire  into  the  validity  of  public  laws  by  a  pro- 
ceeding brought  directly  for  that  purpose.  It  is  only  when  some 
person  invokes  the  aid  of  the  judiciary  in  resisting  the  operation 
of  such  laws  to  the  harm  of  his  liberty,  his  rights  or  his  property, 
that  the  objection  of  unconstitutionality  can  be  raised.  Only 
those  who  have  a  right  affected  can  question  the  validity  of  an 
act.  Strangers  have  no  standing  in  the  courts  upon  such  matters. 
This  is  manifestly  a  sound  principle.  It  is  a  part  of  the  very 
fabric  of  our  law.  It  was  declared  early  by  this  court.  It  has 
been  adhered  to  consistently.  It  has  been  adopted  generally. 
It  would  be  unfortunate  if  volunteers  and  strangers  could 
institute  at  will  proceedings  to  attack  the  constitutionality  of 
public  acts.  Wellington,  Petitioner,  16  Pick.  87,  96;  Hingham  & 
Quincy  Bridge  Corp.  v.  County  of  Norfolk,  6  Allen,  353,  357; 
Pearsons  v.  Ranlett,  110  Mass.  118,  126;  Brewster  v.  Sherman, 
195  Mass.  222,  224;  Attorney -General  v.  Provident  Institution  for 
Savings,  201  Mass.  23,  25;  Lampams  v.  Bell,  180  U.  S.  276; 
Red  River  Valley  Bank  v.  Craig,  181  U.  S.  548,  558;  Hatch  v. 
Rear  don,  204  U.  S.  152,  160;  Jeffrey  Manuf.  Co.  v.  Blagg,  235 
U.  S.  571,  576;  Louisville  &  Nashville  Railroad  v.  Finn,  235 
U.  S.  601,  610.  See  cases  collected  in  6  R.  C.  L.  Constitutional 
Law,  sees.  87  et  seq.,  and  in  8  Cyc.  787. 

The  county  commissioners  in  making  a  division  and  appor- 
tionment are  officers  created  by  the  Constitution.  They  perform 
duties  imposed  by  the  Constitution.  Their  report  regulates  in 
vitally  important  particulars  the  election  of  the  representatives 
of  the  people  to  the  more  numerous  branch  of  the  Legislature  for 
a  period  of  ten  years.  Every  reasonable  presumption  is  made  in 
favor  of  such  a  report.  It  stands  unless  unmistakably  and 
palpably  contrary  to  the  requirements  of  the  Constitution.  It 
manifestly  is  a  public  act  touching  a  fundamental  aspect  of  the 
Constitution.  To  question  its  validity  raises  a  constitutional 
question.  Any  one  who  assails  such  a  report  in  a  judicial  pro- 
ceeding must  show  that  his  rights  have  been  thereby  infringed 
before  he  can  be  heard. 

The  petitioner's  constitutional  right  is  that  the  division  and 
apportionment  shall  be  so  made  that  his  vote  shall  be  accorded 
the  weight  to  which  it  is  entitled  on  the  basis  of  an  apportion- 
ment of  representatives  in  proportion  as  nearly  as  may  be  to 
the  number  of  legal  voters  in  the  county.     If  his  vote  is  given 


McGLUE  V.  COUNTY  COMMISSIONERS,  ESSEX.     SUP.  JUD.  CT.,  1916.    185 

its  due  weight  on  the  footing  of  an  equal  division,  his  right  to 
vote  has  not  been  reduced  or  impaired.  Then  no  discrimination 
has  been  practiced  against  him.  In  such  a  case  no  division  and 
apportionment  could  be  made  under  the  Constitution  which  would 
leave  him,  as  to  voting,  in  any  substantially  different  position, 
or  give  to  his  vote  any  greater  power  or  any  less  power  in  the 
election  of  representatives.  If  his  right  to  become  a  candidate 
for  public  office  is  to  be  considered,  the  result  is  the  same.  The 
number  of  voters  requisite  for  his  nomination  and  election  would 
be  the  correct  number  upon  the  principle  of  equality.  A  division 
thus  made  would  deal  with  him  justly  on  the  principle  of 
equality  secured  by  the  Constitution,  even  though  there  might 
be  defects  as  to  other  districts.  No  right  of  his  would  be  in- 
fringed. He  would  have  no  right  to  complain  of  other  dis- 
crimination or  inequalities  in  the  report,  because  they  would  not 
harm  him;  and  their  correction  would  not  alter  the  weight  of 
his  vote  when  cast  for  other  candidates,  or  the  number  of  the 
votes  of  his  fellows  necessary  to  nominate  or  elect  him  if  he 
should  become  a  candidate.  A  violation  by  the  commissioners 
of  their  constitutional  duty  in  any  material  respect  may  be 
called  in  question  in  the  courts  at  the  instance  of  the  Attorney- 
General  as  representing  the  public.  It  can  be  so  questioned, 
also,  in  an  action  by  any  one  who  shows  that  his  constitutional 
rights  have  been  impaired.  But  it  can  be  so  questioned  by  no 
one  else.  No  matter  how  great  may  be  the  discrimination  or 
disparity  worked  by  the  division  and  apportionment  in  other 
parts  of  the  county,  the  petitioner  has  no  right  to  attack  the 
report  in  the  courts  unless  his  constitutional  rights  are  violated. 
Manifestly  a  legal  voter  in  a  representative  district  containing 
exactly  the  number  of  legal  voters,  to  which  one  representative 
ought  to  be  and  has  been  assigned  in  order  that  the  apportion- 
ment be  precisely  equal  throughout  the  county,  would  not  be 
harmed  or  affected  in  his  constitutional  voting  power  for  mem- 
bers of  the  House  of  Representatives  by  inequality  and  dis- 
parities elsewhere.  There  would  be  secured  to  him  the  exact 
voting  right  to  which  he  was  entitled  under  the  Constitution. 
His  vote  would  have  the  accurate  weight  to  which  it  was  en- 
titled, because  he  would  be  in  a  district  to  which  exact  justice 
had  been  done  in  the  apportionment.  A  voter  in  a  district 
where  the  ratio  between  voters  and  representative  was  lower 
than  the  representative  unit  for  the  county,  that  is,  where  a 
smaller  number  of  voters  than  the  unit  has  been  given  a  repre- 
sentative,   has    a    standing   to    question    in    court    the    constitu- 


186  MASSACHUSETTS  ELECTION  CASES  —  1916. 

tionality  of  a  division  and  apportionment,  because  he  has 
suffered  injury  in  his  constitutional  right.  Such  voter  lives  in 
a  district  against  which  discrimination  is  made. 

These  principles  were  not  discussed  in  either  Attorney-General 
v.  Apportionment  Commissioners,  224  Mass.  598,  or  Donovan  v. 
Apportionment  Commissioners,  ante,  55,  because  the  Attorney- 
General  appeared  as  representing  the  public  interest  in  the  first 
case,  and  because  in  both  cases  each  of  the  individual  petitioners 
for  mandamus  was  a  voter  in  a  district  against  which  a  manifest 
discrimination  had  been  made,  so  that  plainly  each  had  suffered 
a  direct  injury  in  his  voting  power  as  secured  by  the  Constitu- 
tion. 

The  rights  of  the  petitioner  must  be  settled  in  accordance  with 
these  principles.  The  petitioner  is  a  legal  voter  in  Ward  4  of  the 
city  of  Lynn,  which  is  included  within  the  fourteenth  district 
established  by  the  report.  He  has  a  standing  to  attack  the  re- 
port of  the  commissioners  by  showing  that  discrimination  has 
been  made  against  that  district,  or  that  for  any  reason  his  right 
as  a  voter  is  injuriously  affected.  He  has  no  standing  to  ask  that 
the  report  be  set  aside  because  voters  in  other  districts  have  been 
injured  in  their  constitutional  rights.  Therefore  we  cannot  con- 
sider the  apportionment  as  to  other  districts,  nor  decide  whether 
as  to  some  of  them  a  different  result  might  be  reached,  because 
such  matters  are  not  before  us. 

District  No.  14  comprises  Wards  3  and  4  of  the  city  of  Lynn, 
and  the  town  of  Nahant.  It  contains  10,243  legal  voters.  To  it 
are  apportioned  three  representatives.  The  ratio  is  one  repre- 
sentative to  each  3,414  legal  voters.  Thirty-one  representatives 
were  apportioned  to  Essex  County,  which  contained  100,445 
legal  voters.  By  dividing  the  number  of  legal  voters  in  the 
county  by  the  number  of  representatives  the  representative  unit 
or  ratio  of  representation  to  legal  voters  is  found  to  be  3,240  for 
the  county.  A  comparison  between  3,414,  the  ratio  of  legal 
voters  to  representative  in  District  No.  14,  and  3,240,  the  ratio 
for  the  county,  shows  a  disparity  against  District  No.  14  of  174. 

Essex  County  contains  twenty-seven  towns  and  seven  cities, 
the  latter  being  divided  into  forty-six  wards.  There  are  thus 
seventy-three  territorial  units,  which  cannot  be  subdivided  and 
which  must  be  used  in  making  the  division  and  apportionment. 
The  largest  number  of  legal  voters  in  any  of  the  towns  and 
wards,  as  shown  by  the  census,  was  5,077  in  Ward  3  of  Lynn, 
and  the  smallest,  190  in  the  town  of  Boxford.  The  fractions  of 
the  representative  unit  or  ratio  for  the  county,  shown  by  the 


McGLUE  V.  COUNTY  COMMISSIONERS,  ESSEX.     SUP.  JUD.  CT.,  1916.    187 

number  of  legal  voters  in  the  several  towns  and  wards,  are  in 
many  instances  large,  but  range  to  others  comparatively  small. 

The  county  commissioners  were  required  under  the  Constitu- 
tion to  divide  the  county  into  representative  districts  of  con- 
tiguous territory  without  dividing  a  town  or  a  ward  of  a  city, 
and  not  allotting  more  than  three  representatives  to  any  one 
district,  in  such  way  as  to  apportion  the  thirty-one  representa- 
tives "equally,  as  nearly  as  may  be,  according  to  the  relative 
number  of  legal  voters  in  the  several  districts."  These  constitu- 
tional regulations  are  inflexible  and  inviolable.  They  must  be 
complied  with.  But  they  are  not  minute  as  to  particulars.  They 
do  not  govern  details  of  conduct. 

The  task  confronting  the  commissioners  involved  some  com- 
plexity. The  grouping  of  so  many  towns  and  wards  into  dis- 
tricts of  contiguous  territory  in  such  way  that  each  shall  approxi- 
mate as  nearly  as  possible  to  3,240  voters  for  each  of  thirty-one 
representatives  was  by  no  means  simple.  Within  the  broad  lines 
established  by  the  Constitution  there  is  room  for  diversities  of 
opinion  as  to  the  proper  arrangement  of  towns  and  wards  into 
districts  with  one,  two  or  three  representatives,  in  order  to  reach 
as  nearly  as  is  reasonably  practicable  the  unit  or  ratio  of  repre- 
sentation. After  conscientious  effort  there  may  be  instances  of 
considerable  excess  or  deficiency  in  some  districts  as  compared 
with  the  unit.     Exact  equality  would  be  impossible. 

An  excess  of  174  above  the  representative  unit  under  these 
circumstances  does  not  show  that  the  petitioner's  rights  under 
the  Constitution  have  been  violated.  Possibly  other  combina- 
tions of  towns  and  wards  might  have  been  made,  which  would 
have  approached  closer  to  exact  equality;  but  this  disparity  is 
comparatively  insignificant. 

We  do  not  understand  the  petitioner  to  contend  that  the  re- 
port is  invalid  as  to  his  own  district.  At  the  argument  he  dis- 
claimed any  personal  interest.  But  however  that  may  be,  it 
seems  too  plain  for  serious  discussion  that  there  is  no  discrimina- 
tion where  the  disparity  is  so  small  under  the  conditions  here 
disclosed. 

This  is  not  an  instance  where  fair-minded  men  can  entertain  no 
rational  doubt  that  there  is  a  grave,  unnecessary  and  unreason- 
able inequality  of  representation  by  discriminating  against  Dis- 
trict No.  14.  It  is  not  a  wide  and  bold  departure  from  the 
constitutional  requirement.  Attorney-General  v.  Apportionment 
Commissioners,  224  Mass.  598;  Donovan  v.  Apportionment  Com- 
missioners,   ante,    55;     In   re   Baird,    142    N.    Y.    523;     State   v. 


188  MASSACHUSETTS  ELECTION  CASES  —  1916. 

Campbell,   48   Ohio    St.    435;     People   v.    Carlock,    198   111.    150; 
State  v.  Weatherill,  125  Minn.  336,  342. 

The  differences  between  the  case  at  bar  and  the  two  cases 
against  the  Suffolk  County  apportionment  commissioners  cited 
above  are  too  plain  to  require  statement. 

Petition  dismissed. 

The  case  was  argued  at  the  bar  in  September,  1916,  before 
Rugg,  C.J.,  Loring,  Braley,  Pierce  and  Carroll,  JJ.,  and 
afterwards  was  submitted  on  briefs  to  all  the  justices  except 
De  Courcy,  J. 

C.  H.  McOlue  pro  se. 

S.  Parsons  (C.  D.  C.  Moore  with  him)  for  the  respondents. 


BROPHY   V.   APPORTIONMENT   COM'RS.      SUP.   JUD.    CT.,  1916.        189 


SUPREME   JUDICIAL   COURT. 

Patrick  J.  Brophy  and  Another  v.  Suffolk  County 
Apportionment  Commissioners.  • 

John  P.  Mahoney  v.  Same. 

Tilton  S.  Bell  v.  Same. 

James  Buchanan,  Jr.  v.  Same. 

Daniel  J.  Kiley  and  Others  v.  Same. 

H.  Raymond  Carter  v.  Same. 

(Reported  in  225  Mass.  124.) 

Suffolk,  Oct.   18,   1916  — Oct.  26,   1916.     Present,  Rttgg,  C.J.,  Loring, 
Braley,  Pierce  and  Carroll,  JJ. 

Apportionment  of  Representatives.  —  Suffolk  County  comprises  the  city  of  Bos- 
ton, divided  into  twenty-six  wards,  the  cities  of  Chelsea  and  Revere,  each  divided 
into  five  wards,  and  the  town  of  Revere.  The  unit  of  representation  for  the  county 
is  3,258  voters.  The  number  of  voters  in  the  smallest  ward  in  Boston  exceeds  this 
unit  by  almost  700.  Under  Article  21  of  the  Amendments  to  the  Constitution 
each  representative  district  must  consist  of  contiguous  territory,  "no  town  or 
ward  of  a  city  shall  be  divided  therefor"  and  no  district  "shall  be  entitled  to  elect 
more  than  three  representatives."  In  the  division  into  districts  and  the  apportion- 
ment of  representation  made  by  the  third  report  of  the  Suffolk  County  appor- 
tionment commissioners  elected  under  St.  1913,  c.  835,  sec.  390,  the  most  serious 
inequality  shown  on  the  face  of  the  report  was  between  a  district  of  4,854  voters, 
which  was  given  two  representatives,  being  one  for  each  2,427  voters,  or  831  less 
than  the  unit  of  representation,  and  a  district  of  4,282  voters,  which  was  given  only 
one  representative,  making  an  excess  of  1,024  voters  above  the  unit.  To  the  cities 
of  Chelsea  and  Revere  three  representatives  were  assigned,  and  the  aggregate  number 
of  legal  voters  in  the  two  cities  lacked  only  929  of  being  four  times  the  unit  of  rep- 
resentation. Two  other  districts,  each  with  three  representatives,  contained, 
respectively,  11,510  and  11,262  voters,  or  3,836  and  3,754  voters  for  each  repre- 
sentative. It  was  held,  that,  while  the  division  and  apportionment  made  by  the 
report  were  not  ideal,  the  question  was  not  whether  in  the  opinion  of  this  court 
there  could  have  been  a  closer  approximation  to  equality,  because  the  work  was 
to  be  done  by  the  commissioners,  whose  duty  it  was  to  exercise  their  sound  judg- 
ment and  practical  wisdom  in  selecting  the  best  among  the  various  possible  methods 
for  forming  the  districts,  and  that  the  inequalities  of  voting  power  between  the 
different  districts,  as  created  by  the  division  and  apportionment  made  by  the 
report,  were  not  so  great,  and  the  means  of  avoiding  them  were  not  so  clear,  as  to 
compel  this  court  to  decide  that  there  was  a  grave  and  unnecessary  inequality  be- 
between  the  different  districts  in  violation  of  the  requirements  of  the  Constitution. 

Constitutional  Law.  —  Inequalities  in  the  apportionment  are  not  enough  to  make 
void  an  apportionment. 

Supreme  Judicial  Court.  —  The  function  of  the  court  is  not  to  review  or  revise 
the  exercise  of  official  judgment  of  the  apportionment  commissioners  within  its 
legitimate  limits,  but  only  to  declare  void  a  division  and  apportionment  so  vicious 
in  its  nature  as  to  transcend  the  constitutional  power  of  the  commissioners. 


190  MASSACHUSETTS  ELECTION  CASES  —  1916. 

Rugg,  C.J.  The  third  report  of  the  apportionment  commis- 
sioners elected  in  accordance  with  St.  1913,  c.  835,  sec.  390,  at- 
tempting to  divide  Suffolk  County  into  representative  districts, 
and  to  apportion  among  them  the  representatives  assigned  to 
that  county,  is  attacked  by  these  proceedings1  as  contrary  to 
Article  21  of  the  Amendments  to  the  Constitution. 

The  general  principles  by  which  such  an  apportionment  must 
be  made  in  order  to  conform  to  that  amendment  to  the  Constitu- 
tion have  been  stated  at  length  in  the  two  recent  decisions  in 
which  it  has  been  necessary  to  declare  void  the  two  earlier  re- 
ports of  the  commissioners.  Attorney-General  v.  Apportionment 
Commissioners,  224  Mass.  598;  Donovan  v.  Apportionment  Com- 
missioners, ante,  55.  See  also  McGlue  v.  County  Commissioners, 
ante,  59.  These  principles  need  not  be  repeated.  It  is  enough 
to  say  that  the  mandate  of  the  Constitution  is  that  the  division 
into  representative  districts  must  be  made  so  as  to  apportion 
the  representatives  assigned  to  Suffolk  County  "equally,  as 
nearly  as  may  be,  according  to  the  relative  number  of  legal 
voters  in  the  several  districts."  Equal  representation  in  the 
Legislature  in  proportion  to  the  number  of  legal  voters  is  fun- 
damental in  a  true  representative  government.  The  great  pur- 
pose of  the  Twenty-First  Amendment  to  the  Constitution  is  to 
establish  and  to  preserve  in  every  apportionment  equality  among 
all  legal  voters  in  their  voting  power  in  the  election  of  members 
of  the  House  of  Representatives,  so  far  as  this  is  reasonably 
practicable  in  view  of  the  other  constitutional  limitations  as  to 
the  formation  of  representative  districts,  namely,  contiguity  of 
territory,  indivisibility  of  towns  and  wards  of  cities,  and  the 
assignment  of  not  more  than  three  representatives  to  one  dis- 
trict. The  present  report  must  be  examined  to  ascertain  whether 
on  its  face  there  is  a  plain  evasion  of  this  constitutional  require- 
ment in  the  light  of  all  the  attendant  conditions. 

Suffolk  County  comprises  the  cities  of  Boston,  Chelsea  and 
Revere  and  the  town  of  Winthrop.  Boston  is  divided  into 
twenty-six  wards,  the  number  of  legal  voters  in  which  varies 
from  3,913  in  the  smallest  to  10,714  in  the  largest.  Each  of  the 
other  two  cities  is  divided  into  five  wards,  with  legal  voters 
ranging  from  500  to  2,079.  Winthrop  has  3,445  voters.  The 
unit  of  representation  or  ratio  of  voters  to  one  representative  for 
the  county  is  3,258.     The  problem  of  dividing  Suffolk   County 

1  Six  petitions  for  writs  of  mandamus  brought  by  legal  voters  residing  in  five  of  the  legislative 
districts  of  that  county.  The  cases  were  heard  by  De  Courcy,  J.,  who  found  the  facts  to  be  as 
set  forth  in  the  petitions,  and  at  the  request  of  all  the  parties  reported  the  cases  for  determination 
by  the  full  court. 


BROPHY  V.   APPORTIONMENT   COM'RS.      SUP.    JUD.    CT.,  1916.       191 

into  districts  and  apportioning  among  them  the  fifty-four  rep- 
resentatives assigned  to  it  in  some  respects  is  peculiarly  simple 
when  approached  from  the  standpoint  of  the  requirements  of  the 
Constitution.  But  there  are  inherent  difficulties  in  reaching 
equality  of  representation.  The  wards  of  Boston  are  large  in 
number  of  legal  voters,  the  smallest  exceeding  by  almost  700 
the  representative  unit.  These  wards  cannot  be  subdivided. 
The  districts  must  be  composed  of  contiguous  wards  and  towns, 
and  no  more  than  three  representatives  can  be  assigned  to  one 
district. 

The  present  report  divides  the  county  into  twenty-seven  dis- 
tricts. In  ten  of  these,  to  which  are  allotted  nineteen  repre- 
sentatives, the  variation  from  the  representative  unit  is  less 
than  300.  In  five  more  districts,  to  which  are  assigned  thirteen 
representatives,  the  variation  is  more  than  300  and  less  than  400. 
There  are  eight  other  districts,  to  which  are  assigned  seventeen 
representatives,  where  the  variation  is  between  400  and  700. 
In  the  remaining  four  districts,  with  five  representatives,  the 
variations  are  790,  831,  868  and  1,024.  Some  of  these  inequal- 
ities are  not  insignificant.  Such  disproportion  ought  to  be 
avoided  if  reasonably  practicable.  But  inequalities  alone  are  not 
enough  to  make  void  an  apportionment.  The  inequalities  must 
be  unnecessary  and  incompatible  with  reasonable  effort  to  con- 
form to  the  requirements  of  the  Constitution. 

The  most  serious  inequality  shown  on  the  face  of  the  present 
report  is  between  District  No.  3,  conterminous  with  Ward  3  of 
Boston,  which,  with  4,854  voters,  is  given  two  representatives, 
being  one  for  2,427  voters,  or  831  less  than  the  unit  of  representa- 
tion of  3,258;  and  District  No.  25,  conterminous  with  Ward  25 
of  Boston,  with  4,282  voters,  to  which  one  representative  is 
assigned,  being  an  excess  of  1,024  above  the  unit.  This  in- 
equality could  have  been  avoided  only  by  combinations  of  these 
two  wards  with  others  into  larger  districts,  and  apportioning  to 
them  different  numbers  of  representatives.  The  single  practi- 
cable combination  of  Ward  3  is  with  Ward  4.  The  latter  ward, 
having  5,387  voters,  is  by  the  report  made  District  No.  4,  to 
which  are  assigned  two  representatives,  or  one  representative  for 
2,693  voters,  or  565  less  than  the  unit  of  representation.  Some 
of  the  excess  representation  given  to  Districts  Nos.  3  and  4, 
which  are  contiguous,  might  be  eliminated  by  combining  them 
into  a  single  district  with  three  representatives.  But  the  dis- 
crimination against  District  No.  25  would,  by  combination  with 
District  No.   26,  which  is  Ward  26  of  Boston,  the  only  practi- 


192  MASSACHUSETTS  ELECTION  CASES  —  1916. 

cable  combination,  be  changed  into  almost  as  great  a  discrimin- 
ation in  favor  of  the  new  district.  District  No.  26,  with  3,913 
voters  and  one  representative,  has  655  more  than  the  unit  of 
representation.  The  discrimination  against  the  two  districts  in 
the  aggregate  is  1,679.  If  Wards  25  and  26  were  made  one  dis- 
trict with  three  representatives,  there  would  be  8,195  voters,  or  a 
discrimination  in  favor  of  the  district  as  a  whole  of  1,579. 

Complaint  is  made,  also,  of  the  apportionment  of  three  rep- 
resentatives to  the  cities  of  Chelsea  and  Revere,  in  place  of  four 
representatives  assigned  to  them  under  the  earlier  reports  of 
these  commissioners.  The  aggregate  number  of  legal  voters  in 
these  two  cities  lacks  929  of  being  four  times  the  unit  of  repre- 
sentation. Nevertheless,  there  is  strong  argument  in  favor  of  a 
division  of  these  two  cities  so  as  to  assign  to  them  four  repre- 
sentatives in  all.  But  the  ward  lines  and  legal  voters  in  the 
several  wards  in  these  cities  are  such  as  to  make  impossible  a 
division  into  four  separate  districts  with  one  representative  each, 
without  greater  appearance  of  inequality  in  some  respects  than 
is  disclosed  in  the  present  report.  There  are  obvious  objections 
which  may  be  urged  against  combinations  of  wards  into  double 
or  triple  districts.  The  avoidance  of  them  has  something  in  its 
favor. 

Criticism  is  made  of  the  apportionment  as  to  Districts  Nos. 
19  and  22.  These  districts  contain,  respectively,  11,510  and  11,262 
voters,  or  3,836  and  3,754  voters  for  each  representative.  While 
these  disparities  are  not  inconsiderable,  they  are  not  so  large  and 
the  means  for  correcting  them  are  not  so  obvious  as  to  leave  no 
doubt  that  there  has  been  a  violation  of  the  Constitution,  in 
view  of  the  number  of  legal  voters  in  the  territorial  units  which 
must  be  used  without  division  in  forming  the  districts  and 
making  the  apportionment. 

The  present  report  as  an  entirety  avoids  in  large  part  the 
manifest  discriminations  disclosed  in  the  earlier  reports.  Some 
of  the  disparities  of  the  present  report,  stated  either  in  absolute 
figures  or  in  percentages,  are  relatively  large.  WTell-reasoned  and 
sound  decisions  are  to  be  found  holding,  upon  the  facts  there  pre- 
sented, that  disparities  measured  in  terms  of  percentages  as 
great  as  some  of  those  here  disclosed  were  enough  to  render 
such  an  apportionment  a  nullity.  See  Brooks  v.  State,  162  Ind. 
568;  Sherrill  v.  O'Brien,  188  N.  Y.  185.  But  in  these  instances 
the  ratio  of  voters  or  inhabitants  to  representatives  was  larger 
and  the  territorial  units  usable  without  division  were  propor- 
tionately smaller  than  in  the  case  at  bar. 


BROPHY  V.  APPORTIONMENT  COM'RS.      SUP.   JUD.   CT.,   1916.  193 

The  division  and  apportionment  of  the  present  report  are  not 
ideal.  Doubtless  a  closer  approximation  to  equality  might  have 
been  made.  But  the  Constitution  has  placed  the  duty  of 
making  the  division  and  apportionment  upon  the  commissioners 
and  not  upon  the  court.  There  is  room  for  some  diversity  of 
honest  opinion  in  selecting  among  the  various  possible  methods 
the  best  one  for  forming  the  districts.  Sagacity  is  demanded  in 
reaching  a  right  determination.  The  division  and  apportion- 
ment is  not  a  mere  example  in  arithmetic.  It  involves  the  ex- 
ercise of  sound  judgment  and  practical  wisdom.  When  the  re- 
port disregards  a  reasonable  application  of  sound  judgment, 
acting  within  the  positive  command  for  equality  of  voting  power 
contained  in  the  amendment  to  the  Constitution,  then  it  is  a 
nullity.  Every  reasonable  presumption  must  be  made  in  favor 
of  the  report  of  the  commissioners.  The  function  of  the  court 
is  not  to  review  or  revise  the  exercise  of  official  judgment  within 
its  legitimate  limits,  but  only  to  declare  void  a  division  and  ap- 
portionment so  vicious  in  its  nature  as  to  transcend  the  con- 
stitutional power  of  the  commissioners.  Something  must  be 
left  to  the  commissioners,  unless  in  substance  the  division  and 
apportionment  are  to  be  made  at  last  by  the  court.  If  this 
apportionment  on  its  face  does  not  indicate  a  manifest  abuse  of 
power  in  ignoring  the  mandate  of  the  Constitution,  or  an 
evasion  or  direct  infraction  of  the  principles  stated  in  our 
earlier  decisions,  the  court  cannot  interfere  to  set  it  aside. 
In  re  Baird,  142  N.  Y.  523,  529.  With  some  hesitation  we  are 
brought  to  the  conclusion  that  the  inequalities  of  voting  power 
between  the  several  districts,  as  shown  by  the  present  report, 
are  not  quite  so  great  and  the  means  for  avoiding  them  not 
quite  so  clear  as  to  leave  fair-minded  men  in  no  reasonable 
doubt  that  there  is  a  grave  and  unnecessary  inequality  between 
the  different  districts,  and  to  make  imperative  the  conclusion 
that  the  requirements  of  the  Constitution  have  been  violated. 

In  each  case  let  the  entry  be 

Petition  dismissed. 

N.  Matthews  and  F.  G.  Goodale  for  the  petitioners  Kiley, 
McVey  and  Campbell. 

Lee  M.  Friedman  (G.  A.  Ham  with  him)  for  the  petitioner  Bell. 

J.  J.  Leonard  for  the  petitioner  Mahoney. 

C.  F.  Eldredge  for  the  petitioners  Brophy  and  Ahern,  and 
J.  M.  Levenson  for  the  petitioners  Buchanan  and  Carter,  also 
were  in  attendance. 

W.  A.  Buie  for  the  respondents. 


194  MASSACHUSETTS  ELECTION  CASES  —  1917. 


SUPREME   JUDICIAL   COURT. 

Charles   S.   Ashley  v.   Theee   Justices  of  the  Superior 
Court  and  Intervenors. 

(Reported  in  228  Mass.  63.) 

Bristol,    June    18,    1917  —  July   30,    1917.     Present,    Rugg,    C.J.,    Braley, 
DeCourcy,  Pierce  and  Carroll,  JJ. 

Corrupt  Practices.  Pleading.  —  Under  St.  1914,  c.  783,  sec.  10,  an  allegation, 
in  a  petition  charging  the  respondent  with  having  violated  provisions  of  the  cor- 
rupt practices  act  in  connection  with  his  election  as  the  mayor  of  a  certain  city, 
that  the  petitioners  are  "inhabitants,  taxpayers,  and  qualified  voters  in  the  city" 
in  question,  is  a  sufficient  averment  that  the  petitioners  had  a  right  to  vote  for 
mayor  at  the  election  in  question,  which  was  less  than  two  months  before  the 
filing  of  the  petition.  And,  if  such  allegation  were  not  sufficient,  it  could  be 
amended,  so  that  the  validity  of  the  proceeding  would  not  be  impaired. 

Election  Petitions.  —  In  the  provision  of  St.  1914,  c.  783,  sec.  10  (c),  that  "Elec- 
tion petitions  .  .  .  shall  be  heard  and  determined  by  three  justices  of  the  superior 
court  who  shall  each  year,  immediately  following  the  annual  state  election,  be 
assigned  by  the  chief  justice  of  said  court  for  the  hearing  and  determination  of 
all  matters  arising  under  election  petitions  during  the  ensuing  year,"  the  word 
"shall"  has  no  compulsory  significance  in  relation  to  fixing  the  time  when  the 
assignment  oi  the  three  judges  shall  be  made,  and  such  an  assignment  made  by 
the  chief  justice  of  the  Superior  Court  nearly  three  months  after  the  last  annual 
State  election  on  the  day  following  the  granting  by  a  judge  of  the  Superior  Court 
of  an  order  to  the  effect  that  there  is  reasonable  cause  to  believe  that  a  corrupt 
practice  has  been  committed  by  the  respondent  named  in  an  election  petition 
under  the  statute  is  a  valid  assignment  of  the  three  judges  who  are  to  hear  and 
determine  all  matters  arising  under  election  petitions  during  the  year,  including 
the  petition  already  filed. 

Constitutional  Law.  —  By  an  assignment  by  the  chief  justice  of  the  Superior 
Court  under  authority  of  the  statute  named  above  of  three  judges  of  that  court 
to  hear  election  cases  during  the  year  no  new  tribunal  is  created,  and  the  statute 
does  not  violate  chapter  2,  section  I,  Article  IX  of  the  Constitution,  which  pro- 
vides that  "All  judicial  officers  .  .  .  shall  be  nominated  and  appointed  by  the 
governor,  by  and  with  the  advice  and  consent  of  the  council." 

Article  15  of  the  Declaration  of  Rights,  which  provides  that  "In  all  contro- 
versies concerning  property,  and  in  all  suits  between  two  or  more  persons,  except 
in  cases  in  which  it  has  heretofore  been  otherways  used  and  practised,  the  parties 
have  a  right  to  a  trial  by  jury,"  does  not  apply  to  an  election  petition  under  the 
statute  named  above;  because  the  right  to  hold  an  office  to  which  one  has  been 
elected  is  not  "property"  within  the  meaning  of  the  word  as  used  in  the  Declara^- 
tion  of  Rights,  and  a  proceeding  upon  an  election  petition  is  not  a  "suit  between 
two  or  more  persons"  in  the  sense  in  which  those  words  there  are  used. 

Quo  Warranto.  —  The  hearing  of  an  election  petition  under  the  corrupt  prac- 
tices act  is  a  civil  proceeding  in  the  nature  of  a  quo  warranto,  and  is  not  a  criminal 
prosecution. 

Constitutional  Law.  —  The  provisions  of  the  corrupt  practices  act  contained  in 
St.  1913,  c.  835,  sec.  497,  as  amended  by  St.  1914,  c.  783,  sec.  12,  that  "Whoever 
is  found  by  final  judgment  upon  an  election  petition  ...  to  have  committed  a 


ASHLEY  V.   JUSTICES  SUPERIOR   COURT.      SUP.   JUD.   CT.,    1917.        195 

corrupt  practice,  and  shall,  in  accordance  with  such  finding  forfeit  the  office  to 
which  he  has  been  elected,  or  whoever  is  convicted  in  a  criminal  proceeding  of 
violating  any  provision  of  law  relating  to  corrupt  practices  in  elections  shall  be 
disqualified  as  a  voter  for  a  period  of  three  years  following  the  date  of  his  convic- 
tion, and  shall  be  deemed  ineligible  to  hold  public  office  for  the  said  period,"  con- 
sidered in  connection  with  the  Fortieth  Amendment  to  the  Constitution,  which 
added  to  the  classes  of  persons  from  whom  the  right  to  vote  is  withheld,  who  there- 
tofore were  "paupers  and  persons  under  guardianship,"  "persons  temporarily  or 
permanently  disqualified  by  law  because  of  corrupt  practices  in,  respect  to  elec- 
tions," do  not  give  the  respondent  in  an  election  petition  a  constitutional  right 
to  a  trial  by  jury  thereon. 

The  provisions  of  the  corrupt  practices  act  above  described  impose  no  un- 
constitutional limitations  upon  the  right  to  vote  or  the  right  to  hold  office. 

The  "full  power  and  authority"  given  to  the  General  Court  by  chapter  1,  sec- 
tion I,  Article  III  of  the  Constitution  "to  erect  and  constitute  judicatories  and 
courts  of  record,  or  other  courts,"  includes  by  necessary  implication  the  power 
to  fix  the  territorial  limits  within  which  such  courts  shall  exercise  jurisdiction  and 
the  places  at  which  they  shall  be  held.  The  provision  of  the  corrupt  practices 
act,  that  election  petitions  shall  be  entered  in  the  Superior  Court  in  Suffolk  County, 
is  within  this  power,  and  the  respondent's  right  under  Article  11  of  the  Declaration 
of  Rights  "to  obtain  right  and  justice  freely"  is  not  impaired  thereby. 

There  is  nothing  in  the  corrupt  practices  act  in  conflict  with  the  provision  of 
Article  9  of  the  Declaration  of  Rights  that  "All  elections  ought  to  be  free;  and  all 
the  inhabitants  of  this  commonwealth,  having  such  qualifications  as  they  shall 
establish  by  their  frame  of  government,  have  an  equal  right  to  elect  officers,  and 
to  be  elected,  for  public  employments." 

Corrupt  Practices.  —  There  is  nothing  in  the  corrupt  practices  act  that  deprives 
the  respondent  in  an  election  petition  of  the  equal  protection  of  the  laws. 

Constitutional  Law.  —  The  provision  of  the  corrupt  practices  act  contained 
in  St.  1913,  c.  835,  sec.  371,  as  amended  by  St.  1914,  c.  783,  sec.  11,  excepting 
from  its  operation  the  elections  of  town  officers  in  towns  of  less  than  10,000  inhab- 
itants, does  not  impair  the  constitutional  validity  of  the  act. 

Supreme  Judicial  Court.  —  There  is  nothing  in  the  corrupt  practices  act  in 
derogation  of  the  constitutional  powers  of  the  Supreme  Judicial  Court. 

Constitutional  Law.  —  There  is  nothing  in  the  corrupt  practices  act  in  conflict 
with  any  provision  of  the  Constitution  of  the  United  States. 

The  provision  in  regard  to  trial  by  jury  in  the  Seventh  Amendment  to  the  Con- 
stitution of  the  United  States  relates  only  to  the  courts  of  the  United  States. 

Trial  by  jury  is  not  essential  to  the  due  process  of  law  secured  by  the  Four- 
teenth Amendment  to  the  Constitution  of  the  United  States. 

Neither  the  right  to  hold  an  elective  public  office  nor  the  right  to  vote  is  a  prop- 
erty right  within  the  meaning  of  the  Fourteenth  Amendment  to  the  Constitution 
of  the  United  States. 

The  portion  of  the  corrupt  practices  act  contained  in  St.  1914,  c.  783,  sec.  10. 
which  in  Dinan  v.  Swig,  223  Mass.  516,  was  held  to  be  unconstitutional  and  void 
as  in  violation  of  the  provisions  of  the  Constitution,  which  make  each  branch  of 
the  General  Court  the  final  judge  of  the  returns,  elections  and  qualifications  of 
its  own  members,  is  distinct  and  separate  from  the  rest  of  the  act  and  does  not 
affect  the  validity  of  the  other  parts. 

Writ  of  Prohibition.  —  A  writ  of  prohibition  will  not  be  issued  to  correct  errors 
or  irregularities  of  a  tribunal  that  is  acting  within  its  jurisdiction,  and  can  be 
invoked  only  to  prevent  such  tribunal  from  exercising  a  jurisdiction  that  it  does 
not  possess. 

Pleading.  —  The  respondent  named  in  an  election  petition  brought  under  St. 
1914,  c.  783,  sec.  10,  charging  him  with  having  violated  the  provisions  of  the  cor- 
rupt practices  act  in  connection  with  his  election  as  the  mayor  of  a  city,  appeared 
specially  and  pleaded  specially  that  he  could  not  be  held  to  answer  the  petition 


196  MASSACHUSETTS  ELECTION  CASES  —  1917. 

because  the  subpoena  addressed  to  him  had  been  made  returnable  in  fifteen  days 
instead  of  fourteen  days  after  the  filing  of  the  petition.  A  few  days  later,  without 
waiting  for  the  Superior  Court  to  pass  upon  his  plea,  he  brought  a  petition  for 
a  writ  of  prohibition  against  the  three  judges  of  the  Superior  Court  assigned  to 
hear  election  petitions.  Held,  that  the  matter  set  up  in  the  special  plea  in  regard 
to  the  return  day  of  the  subpoena  was  within  the  jurisdiction  of  the  Superior  Court, 
and  was  not  open  to  the  petitioner  upon  his  petition  for  a  writ  of  prohibition. 

Petition,  filed  on  Feb.  16,  1917,  and  allowed  to  be  filed  in  its 
amended  form  on  March  20,  1917,  by  Charles  S.  Ashley,  who 
was  elected  mayor  of  New  Bedford  on  Dec  5,  1916,  against 
three  justices  of  the  Superior  Court,  for  a  writ  of  prohibition 
prohibiting  the  respondents  from  proceeding  to  hear  and  deter- 
mine an  election  petition  of  Edward  R.  Hathaway  and  four 
others,  charging  the  present  petitioner  with  having  violated  the 
corrupt  practices  act  and  seeking  to  have  his  election  as  mayor 
of  New  Bedford  declared  void,  alleging  "that  on  January  25 
last  Edward  R.  Hathaway  and  four  others  of  said  New  Bedford 
made  written  application  to  a  justice  of  the  Superior  Court 
sitting  in  Suffolk  County  for  leave  to  file  an  election  petition 
and  obtained  an  order  thereon  giving  such  leave,  and  thereafter 
on  Jan.  26,  1917,  filed  in  the  Superior  Court  for  the  county  of 
Suffolk  an  election  petition  asking  to  have  the  aforesaid  election 
of  this  petitioner  as  mayor  of  New  Bedford  declared  void;  that 
neither  the  said  application,  nor  the  said  order,  nor  the  said 
petition,  alleged  that  the  said  Hathaway  and  four  others,  or 
any  of  them,  had  the  right  to  vote  for  this  petitioner,  or  had 
the  right  to  vote  at  the  election  in  which  this  petitioner  was 
chosen  mayor,  and  no  evidence  that  they  or  any  of  them  had 
such  right  was  introduced  at  the  hearing  on  said  application; 
that  the  subpoena  issued  on  said  election  petition  was  not  re- 
turnable fourteen  days  after  the  date  of  the  filing  of  the  petition 
as  required  by  law;  that  the  said  writ  of  subpoena  did  not  bear 
teste  of  the  first  justice  of  the  court  to  which  it  was  returnable; 
that  at  the  time  said  election  petition  was  filed  no  court  was 
legally  constituted  for  the  trial  of  said  petition;  that  at  the 
time  said  petition  wras  filed  the  respondents  had  not  been  and 
were  not  legally  assigned  for  the  hearing  and  determination  of 
election  petitions,  and  had  not  then  been  and  are  not  now 
legally  assigned  for  the  hearing  and  determination  of  the  afore- 
said election  petition;  that  the  respondents,  claiming  to  be 
legally  assigned  for  the  hearing  and  determination  of  election 
petitions,  are  intending  and  proceeding  to  hear  and  determine  the 
said  election  petition  brought  against  this  petitioner;    that  the 


ASHLEY  V.   JUSTICES  SUPERIOR  COURT.      SUP.   JUD.   CT.,    1917.        197 

statute  under  which  the  respondents  are  acting,  and  the  statutes 
creating,  defining,  penalizing  and  punishing  corrupt  practices  at 
elections  are  unconstitutional  and  violate  the  Constitution  of 
Massachusetts;  that  the  statute  under  which  the  respondents 
are  acting  and  the  other  statutes  aforesaid  are  unconstitutional 
and  in  violation  of  section  1  of  Article  14  of  the  Amendments  to 
the  Constitution  of  the  United  States,  in  that  they  abridge  the 
privileges  and  immunities  of  citizens  of  the  United  States,  in 
that  they  deprive  persons  of  life,  liberty  and  property  without 
due  process  of  law,  and  in  that  they  deny  persons  within  their 
jurisdiction  equal  protection  of  the  laws;  and  that  the  re- 
spondents have  no  jurisdiction  to  hear  and  determine  said 
election  petition." 

The  respondents  filed  an  answer.  By  orders  of  the  court 
Edward  R.  Hathaway  and  the  Attorney-General  were  per- 
mitted to  intervene  as  parties  respondent. 

The  special  appearance  of  the  present  petitioner  in  the  Su- 
perior Court  for  the  purpose  of  moving  to  dismiss  the  election 
petition  against  him,  which  is  mentioned  in  the  opinion,  was 
filed  on  Feb.  10,  1917,  and  was  as  follows:  "And  now,  without 
waiving  any  rights,  and  without  submitting  himself  to  the 
jurisdiction  of  the  court,  the  respondent,  appearing  specially  for 
the  sole  purpose  of  objecting  to  the  jurisdiction,  says  that  the 
subpoena  in  this  case  was  not  made  returnable  fourteen  days 
after  the  date  on  which  the  petition  was  filed,  and  that  no  proper 
subpoena  has  been  duly  served  upon  the  respondent.  Wherefore, 
he  prays  that  the  petition  be  dismissed." 

The  case  came  on  to  be  heard  before  Braley,  J.,  upon  the 
amended  petition,  the  answer  to  the  original  petition  and  the 
answer  to  the  amended  petition.  It  was  admitted  that  all 
the  allegations  of  fact  in  the  amended  petition  and  the  answers 
were  true,  and  the  single  justice  found  them  to  be  true.  The 
justice  reported  the  case  for  determination  by  the  full  court, 
with  the  stipulation  that  the  petition  was  not  to  be  denied  on 
the  ground  of  discretion. 

The  case  was  argued  at  a  special  sitting  of  this  court  on  June 
18,  1917. 

J.  W.  Cummings  and  C.  R.  Cummings  for  the  petitioner. 
H.  E.  Woodard  for  Edward  R.  Hathaway. 
C.  W.  Mulcahy,  Assistant  Attorney-General,  for  the  Attorney- 
General,  filed  a  brief. 


198  MASSACHUSETTS  ELECTION  CASES  —  1917. 

Rugg,  C.J.  This  is  a  petition  for  a  writ  of  prohibition.  The 
petitioner  is  the  respondent  in  an  election  petition  filed  under  the 
corrupt  practices  act,  St.  1913,  c.  835,  as  amended  by  St.  1914, 
c.  783.  That  election  petition  charged  the  respondent  therein, 
the  present  petitioner,  who  hereafter  will  be  called  the  peti- 
tioner, with  having  violated  provisions  of  the  corrupt  practices 
act  in  connection  with  his  election  in  December,  1916,  as  mayor 
of  New  Bedford.  The  respondents  are  three  judges  of  the 
Superior  Court  who  have  been  assigned  to  hear  such  election 
petitions.  The  grounds  alleged  for  the  issuance  of  the  writ  of 
prohibition  in  the  petition  at  bar,  succinctly  stated,  are:  (1) 
that  the  election  petition  is  fatally  defective  in  jurisdictional 
allegations  not  susceptible  of  being  cured  by  amendment;  (2) 
that  the  respondents  have  no  jurisdiction  to  hear  the  election 
petition  because  not  legally  assigned  therefor  in  accordance  with 
the  statute;  (3)  that  the  statute  under  which  the  election 
petition  is  brought  is  unconstitutional  in  several  respects;  (4) 
that  no  legal  subpoena  issued  to  summon  the  respondent  into 
court,  in  that,  while  the  statute  required  that  the  subpoena  "be 
returnable  fourteen  days  after  the  date  on  which  the  petition  is 
filed,"  it  was  in  fact  made  returnable  fifteen  days  thereafter. 

In  their  answer  the  respondents  admit  that  the  petitioner  was 
declared  elected  and  was  inaugurated  mayor  of  New  Bedford, 
and  aver  that  they  were  assigned  in  accordance  with  the  statutes 
to  hear  election  petitions;  that  they  were  at  the  time  of  the 
filing  of  the  present  petition  intending  and  proceeding  to  hear 
the  election  petition  brought  against  the  present  petitioner; 
that  the  papers  on  file  show  that  the  subpoena  on  the  election 
petition  was  returnable  fifteen  days  after  the  filing  of  the  peti- 
tion; that  the  petitioner  as  respondent  therein  appeared  specially 
and  filed  a  motion  to  dismiss  the  election  petition  on  the  ground 
that  the  subpoena  was  not  issued  according  to  the  statute,  and 
he  had  not  been  rightly  summoned;  and  that  no  action  has 
been  taken  by  them  upon  this  motion  to  dismiss,  only  seven 
days  having  elapsed  between  its  filing  and  the  bringing  of  the 
present  petition,  whereupon  they  immediately  directed  all  pro- 
ceedings in  the  election  petition  case  to  be  suspended  until  the 
further  order  of  the  Supreme  Judicial  Court  on  the  present 
petition. 

The  first  of  the  petitioners  in  the  election  petition  and  the 
Attorney-General  have  been  allowed  to  intervene.  The  case  was 
reserved  upon  the  petition  and  answer  for  the  determination  of 
the  full  court. 


ASHLEY  V.   JUSTICES  SUPERIOR  COURT.      SUP.   JUD.   CT.,    1917.        199 

These  several  grounds  urged  in  support  of  the  issuance  of 
prohibition  will  be  examined  in  the  order  stated  above. 

1.  The  first  is  the  fatally  defective  nature  of  the  election 
petition. 

That  petition  alleges  that  the  petitioners  therein  named  are 
"inhabitants,  taxpayers  and  qualified  voters  in  the  city  of  New 
Bedford."  This  is  a  sufficient  averment  that  the  petitioners 
had  a  right  to  vote  for  mayor  at  the  election  in  question  in  a 
proceeding  of  this  sort,  where  the  petition,  by  St.  1914,  c.  783, 
sec.  10  (b),  must  be  filed  within  two  months  after  the  date  of 
the  election  to  which  it  relates,  in  view  of  other  requirements 
of  law  as  to  registration  of  voters  and  the  well-known  customs 
of  registrars.  But  if  the  allegations  were  not  sufficient,  they 
might  be  corrected  by  amendment.  See  Tucker  v.  Fish,  154 
Mass.  574,  578;  Dartmouth  v.  County  Commissioners,  153  Mass. 
12;  Crafts  v.  Sihes,  4  Gray,  194.  The  decisions  relied  on  by 
the  petitioner  need  not  be  reviewed.  They  are  by  courts  of  other 
jurisdictions,  where  doubtless  the  policy  of  the  law  is  more 
insistent  upon  niceties  of  pleading  than  it  is  in  this  Commonwealth. 

2.  The  second  ground  urged  by  the  petitioner  is  that  the 
respondents  have  not  been  legally  assigned  as  the  three  judges 
to  hear  election  petitions  in  accordance  with  the  statute,  and 
hence  are  without  jurisdiction  in  the  premises. 

The  words  of  St.  1914,  c.  783,  sec.  10  (c)  are  that  "Election 
petitions  .  .  .  shall  be  heard  and  determined  by  three  justices 
of  the  superior  court  who  shall  each  year  immediately  following 
the  annual  state  election,  be  assigned  by  the  chief  justice  of  said 
court  for  the  hearing  and  determination  of  all  matters  arising 
under  election  petitions  during  the  ensuing  year."  The  annual 
State  election  in  1916  was  held  on  November  7.  The  three  judges 
were  not  assigned  by  the  chief  justice  of  the  Superior  Court  until 
Jan.  27,  1917,  which  was  the  day  following  the  granting  of  the 
order  by  the  Superior  Court  judge  to  the  effect  that  there  was 
reasonable  cause  to  believe  that  a  corrupt  practice  had  been 
committed  by  the  petitioner.  It  does  not  appear  that  there  had 
been  any  occasion  for  the  assignment  of  the  three  judges  earlier 
than  this  date,  or  that  there  had  been  any  suggestion  upon  the 
records  of  the  court  that  any  corrupt  practice  had  been  com- 
mitted in  the  Commonwealth.  The  word  "shall"  as  used  in 
this  statute  cannot  be  thought  to  have  compulsory  signification 
in  the  sense  that  the  rights  of  parties  and  the  public  fail  utterly 
of  possibility  of  enforcement  if  there  has  been  a  delay  in  making 
the    assignment   of   the   judges.      Important   public    and   private 


200  MASSACHUSETTS  ELECTION  CASES  —  1917. 

interests  ordinarily  are  not  intended  to  be  made  dependent 
wholly  upon  the  performance  of  a  duty  by  a  public  officer  at  a 
given  moment  of  time.  When  the  word  "shall"  is  used  for  fixing 
the  time  for  the  performance  of  official  duty,  where  private 
rights  are  not  directly  concerned,  it  commonly  is  construed  to 
be  directory  rather  than  mandatory.  The  act  imposes  an  im- 
perative obligation  upon  the  chief  justice  to  make  the  assign- 
ment. It  indicates  the  time  when  the  assignment  ought  to  be 
made.  But  the  jurisdiction  of  the  court  over  the  parties  is  not 
impaired  if  the  assignment  of  the  three  judges  is  made  in  season 
to  perform  the  duties  established  by  the  statute.  Cheney  v. 
Coughlin,  201  Mass.  204,  211,  212,  where  earlier  cases  of  this 
and  other  courts  are  collected  and  reviewed.  Rutter  v.  White, 
204  Mass.  59;  Pevey  v.  Aylward,  205  Mass.  102;  Rea  v.  Alder- 
men of  Everett,  217  Mass.  427,  and  cases  cited  at  430.  It  follows 
that  the  respondents  are  not  without  jurisdiction  on  this  ground 
to  consider  the  election  petition. 

3.  It  is  argued  that  the  corrupt  practices  act  is  unconstitu- 
tional on  several  grounds. 

(a)  The  provision  that  three  judges  of  the  Superior  Court 
"for  the  hearing  and  determination  of  all  matters  arising  under 
election  petitions  during  the  ensuing  year,"  "shall  each  year, 
immediately  following  the  annual  state  election,"  "be  assigned 
by  the  chief  justice  of  said  court,"  does  not  contravene  chapter 
2,  section  I,  article  IX  of  the  Constitution  to  the  effect  that 
"All  judicial  officers  .  .  .  shall  be  nominated  and  appointed  by 
the  governor,  by  and  with  the  advice  and  consent  of  the  council." 

The  election  petitions  established  by  the  corrupt  practices 
act  are  proceedings  in  the  Superior  Court.  The  act  provides 
that  all  election  petitions  shall  be  brought  in  the  Superior  Court 
in  the  county  of  Suffolk,  that  they  can  be  brought  only  by 
permission  granted  by  a  Superior  Court  judge  after  an  ex  parte 
preliminary  hearing,  and  that  they  shall  be  entered  in  a  separate 
docket  by  the  clerk  of  the  Superior  Court  for  Suffolk  County. 
They  are  to  be  heard  and  determined  by  three  judges  of  the 
Superior  Court.  From  beginning  to  end  the  matter  is  conducted 
by  the  judges,  recorded  upon  the  records,  and  the  papers  are 
kept  in  the  custody  of  the  clerk,  of  the  Superior  Court.  No  new 
court  is  established.  No  new  tribunal  is  created.  A  new  kind 
of  procedure  is  created.  In  some  respects  the  practice  is  regu- 
lated in  considerable  detail,  and  is  made  radically  different  from 
that  heretofore  prevailing  in  more  familiar  classes  of  litigation. 
But  the  jurisdiction  is  conferred  upon  an  existing  court. 


ASHLEY  V.   JUSTICES  SUPERIOR  COURT.      SUP.   JUD.   CT.,    1917.       201 

The  Legislature  may  provide  that  particular  causes  may  be 
tried  before  one  or  more  judges  of  any  court.  The  history  of 
statutory  changes  respecting  the  trial  of  indictments  for  capital 
offences,  from  the  original  requirement  that  all  such  trials  must 
be  before  this  court  sitting  en  banc  to  the  present  provision  that 
they  be  had  before  a  single  judge  of  the  Superior  Court,  is  an 
illustration  of  the  power  of  the  Legislature  in  this  regard.  Com- 
monwealth v.  Phelps,  210  Mass.  78.  The  authority  of  the  Legis- 
lature to  transfer  jurisdiction  from  justices  of  the  peace  to  the 
judges  of  the  police  court  and  conferring  upon  the  latter  a  new 
name,  was  confirmed  by  Wales  v.  Belcher,  3  Pick.  508.  Brien 
v.  Commonwealth,  5  Met.  508.  It  was  held  in  Dearborn  v.  Ames, 
8  Gray,  1,  that  jurisdiction  over  insolvency  matters  previously 
vested  in  elective  officers  whose  election  was  provided  for  by 
the  constitution,  might  be  transferred  to  a  regularly  constituted 
court. 

There  are  numerous  instances  where  the  hearings  must  be  had 
before  two  or  more  judges.  Allusion  has  already  been  made  to 
trials  of  capital  cases.  Jurisdiction  was  conferred  by  R.  L.  c.  201, 
sec.  2  upon  three  judges  of  the  Superior  Court  to  hear  claims 
against  the  Commonwealth  in  excess  of  $1,000.  Provision  is 
made  by  R.  L.  c.  157,  sec.  5  for  trial  of  certain  civil  causes 
before  three  judges  of  the  Superior  Court.  The  assignments  of 
the  judges  to  hold  the  court  in  all  these  cases  must  of  necessity 
be  made  by  the  chief  justice.  It  is  expressly  provided  by  St. 
1912,  c.  649,  sec.  8,  that  the  three  judges  of  the  Municipal 
Court  of  the  City  of  Boston  to  hold  the  Appellate  Division  of 
that  court  thereby  established,  shall  "be  designated  from  time 
to  time  by  the  chief  justice"  of  that  court.  It  never  has  been 
suggested  in  any  of  the  numerous  cases  which  have  been  appealed 
from  the  Appellate  Division  of  that  court  that  there  was  any- 
thing unconstitutional  in  its  organization.  The  most  ancient 
and  familiar  illustration  of  division  of  work  is  in  the  Supreme 
Judicial  Court,  where  constantly  certain  justices  are  sitting  as 
the  quorum  of  the  full  court,  and  others  are  holding  court  as 
single  justices.  It  requires  no  argument  to  demonstrate  that  the 
designation  of  the  justices  to  sit  as  the  full  court  is  a  judicial 
duty. 

The  circumstance,  that  under  the  instant  statute  the  three 
judges  assigned  are  to  hear  all  the  election  petitions  brought 
during  the  year,  is  immaterial  in  this  connection.  It  is  a  well- 
known  practice  for  the  assignments  of  judges  to  specific  duties 
to  be  made  for  the  period  of  a  year. 


202  MASSACHUSETTS  ELECTION  CASES  —  1917. 

It  is  an  appropriate  function  of  the  office  of  chief  justice  to 
make  such  assignments  as  are  required  by  this  statute.  It  is  a 
detail  in  the  efficient  administration  of  justice  by  courts  com- 
posed of  several  judges  that  the  chief  justice  should  arrange  a 
division  of  work  among  the  different  judges  in  such  way  as  to 
promote  the  transaction  of  the  business  of  the  court  in  the  most 
satisfactory  manner.  It  is  the  performance  of  a  strictly  judicial 
duty. 

No  new  court  is  established  and  no  new  judges  are  required  by 
the  corrupt  practices  act.  An  existing  court  is  given  jurisdiction 
of  a  new  kind  of  litigation,  and  provision  is  made  for  designation 
in  the  ordinary  way  of  judges  already  commissioned,  to  perform 
the  duties  arising  from  the  new  kind  of  jurisdiction.  The  con- 
clusion is  imperative  that  the  act  is  not  violative  of  the  con- 
stitutional requirement  that  all  judges  shall  be  appointed  by  the 
Governor. 

It  is  not  necessary  to  inquire  whether  the  subject  of  elections 
is  so  much  in  the  nature  of  a  political  question  that  the  Legis- 
lature is  unlimited  in  its  power  to  establish  tribunals  and  fix 
their  jurisdiction  to  deal  with  election  to  public  office,  and 
may  even  treat  it  as  an  executive  or  administrative  function  and 
not  so  judicial  in  character  as  necessarily  to  be  vested  in  the 
courts.  See  in  this  connection  State  v.  Lewis,  51  Conn.  113; 
Williamson  v.  Lane,  52  Texas,  335;  Lynch  v.  Chase,  55  Kans. 
367,  371;  State  v.  Hawkins,  44  Ohio  St.  98,  109;  Ewing  v. 
Filley,  43  Penn.  St.  384,  390.  Nor  is  it  necessary  to  consider 
whether  the  principle  of  Young  v.  BlaisdcU,  138  Mass.  344, 
may  be  applicable. 

(6)  The  right  of  trial  by  jury  as  secured  by  the  Constitution 
is  not  denied  by  the  act.  The  Declaration  of  Rights,  by  Article 
15,  holds  sacred  the  right  to  a  trial  by  jury  "In  all  contro- 
versies concerning  property  and  in  all  suits  between  two  or  more 
persons,  except  in  cases  in  which  it  has  heretofore  been  other- 
ways  used  and  practiced."  It  was  decided  in  Attorney -General  v. 
Sullivan,  163  Mass.  446,  451,  452,  that  a  public  office  like  that  of 
mayor  is  not  "property"  as  that  word  is  used  in  the  Declaration 
of  Rights.  A  public  office  does  not  possess  the  attributes  of 
private  property.  Any  office  created  by  the  General  Court,  and 
not  established  by  name  or  tenure  by  the  Constitution,  "may  be 
regulated,  limited,  enlarged  or  terminated  by  law,  as  public 
exigency  or  policy  may  require."  Taft  v.  Adams,  3  Gray,  126, 
130.  A  public  office  is  not  the  private  property  of  the  person 
elected  to  it.     It  is  a  public  trust,  to  be  held  and  administered 


ASHLEY  V.   JUSTICES  SUPERIOR  COURT.      SUP.   JUD.   CT.,    1917.        203 

entirely  and  absolutely  for  the  benefit  and  in  the  interest  of 
the  people.  This  rule  prevails  generally.  Attorney-General  v. 
Jochim,  99  Mich.  358,  367;  People  v.  Coler,  173  N.  Y.  103; 
Prince  v.  Skillin,  71  Me.  361,  365;  Donahue  v.  County  of  Will, 
100  111.  94;  Taylor  v.  Carr,  125  Tenn.  235;  Mason  v.  State, 
58  Ohio  St.  30;  Moore  v.  Strickling,  46  W.  Va.  515,  518; 
State  v.  Douglas,  26  Wis.  428,  432;  Hawkins  v.  Roberts  &  Son, 
122  Ala.  130;  Gray  v.  McLendon,  134  Ga.  224,  251,  252.  There- 
fore it  follows  that  so  far  as  concerns  the  question  of  property, 
no  jury  trial  need  be  provided  in  trials  as  to  the  title  to  a 
public  office. 

The  right  to  vote  also  is  in  its  nature  political  and  not 
property.  Kinneen  v.  W ells,  144  Mass.  497;  Cooley  Const. 
Lim.  (7th  ed.)  901.     See  cases  collected,  1  L.  R.  A.  Ill,  note. 

The  election  petition  provided  by  the  corrupt  practices  act 
is  not  a  "suit  between  two  or  more  persons"  in  the  sense  in 
which  those  words  are  used  in  the  Declaration  of  Rights.  The 
right  to  contest  an  election  in  the  manner  and  to  the  extent  set 
forth  in  the  instant  statute  is  not  either  in  form  or  in  substance 
a  common-law  right.  It  is  not  in  its  essence  a  controversy 
between  two  parties  in  the  sense  of  ordinary  litigation.  It  is  in 
its  nature  an  inquiry  into  the  purity  of  the  election.  A  corrupt 
practice  is  defined  by  section  368  of  the  act  as  amended.1 

The  election  petition  must  be  confined  to  a  request  for  an 
investigation  respecting  the  matters  enumerated  in  this  section 
of  the  act.  It  must  be  brought  by  five  persons  whose  only 
qualification  as  petitioners  is  that  they  were  voters  qualified  by 
law  to  vote  at  the  election  as  to  which  complaint  is  made. 
They  have  no  private  interest  to  subserve.  The  purity  and 
freedom  of  elections  is  fundamental  in  a  Republican  form  of 
government.  Scarcely  anything  can  be  conceived  more  vital  to 
the  public  welfare  than  free  and  honest  elections.     An  election 

1  The  provisions  referred  to  are  as  follows:  "A  candidate  shall  be  deemed  to  have  committed 
a  corrupt  practice  who  shall,  either  by  himself  or  by  another,  violate  the  provisions  of  section 
three  hundred  and  forty-eight  relative  to  the  expenditure  of  money  in  excess  of  the  amounts 
therein  authorized;  who  shall  make  a  false  return  in  any  statement  filed  in  accordance  with  sec- 
tions three  hundred  and  sixty-two  and  three  hundred  and  sixty-three  of  this  act ;  who  shall,  either 
by  himself  or  another,  pay  or  give,  or  directly  or  indirectly,  promise  to  a  voter  any  gift  or  reward 
to  influence  his  vote  or  to  induce  him  to  withhold  his  vote;  who  shall,  either  by  himself  or  another, 
aid  or  abet  a  person,  who  is  not  entitled  to  vote,  in  voting  or  attempting  a  vote  at  a  primary 
election,  or  in  voting  or  attempting  to  vote  under  a  name  other  than  his  own,  or  in  casting  or 
attempting  to  cast  more  than  one  ballot;  who  shall  either  by  himself  or  another  fraudulently 
and  wilfully  obstruct  and  delay  a  voter;  who  shall,  either  by  himself  or  another  interfere  with, 
hinder  or  prevent  an  election  officer  from  performing  his  duties,  forge  an  endorsement  upon, 
or  alter,  destroy  or  deface  a  ballot;  or  who  shall,  either  by  himself  or  another,  tamper  with  or 
injure  or  attempt  to  injure  any  voting  machine  or  ballot  box  to  be  used  or  being  used  in  an  elec- 
tion, or  shall  prevent  or  attempt  to  prevent  the  correct  operation  of  such  machine  or  box." 


204  MASSACHUSETTS   ELECTION  CASES  —  1917. 

petition  cannot  be  brought  without  leave  first  obtained  from  a 
judge  who  must  certify  after  hearing  that  he  is  satisfied  that 
there  is  reasonable  cause  not  only  to  believe  that  a  corrupt 
practice  was  committed  with  reference  to  the  particular  election, 
but  also  that  upon  the  evidence  obtainable  the  corrupt  practice 
may  be  successfully  proved.  An  election  petition  once  entered 
in  court  cannot  be  discontinued  without  the  oonsent  of  the 
Attorney-General.  Sec.  366.  The  judgment  entered  at  the  con- 
clusion of  the  proceeding,  if  a  corrupt  practice  is  found  to  have 
been  committed,  is  not  in  the  nature  of  a  remedy  for  a  private 
wrong,  but  a  vindication  of  an  outrage  upon  the  public  and  a 
purging  of  public  office  from  a  foul  stain.  The  election  is  to  be 
declared  void  and  the  respondent  ousted  from  office  and  the 
office  declared  vacant.  Section  369,  as  amended  by  St.  1914, 
c.  783,  sec.  10.  The  whole  proceeding,  throughout,  is  public 
rather  than  private  in  character.  It  is  in  the  nature  of  a  quo 
warranto  proceeding.  The  public,  instead  of  being  represented 
at  the  initiatory  stages  by  the  Attorney-General,  is  in  effect 
represented  by  the  five  voters  acting  not  wholly  upon  their  own 
volition,  but  upon  authorization  from  the  court;  and  after  the 
bringing  of  the  petition  the  Attorney-General  has  a  limited 
control  over  the  proceedings.  It  is  no  more  a  suit  between 
persons  than  is  a  petition  for  quo  warranto  which  in  Attorney- 
General  v.  Sullivan,  163  Mass.  446,  451,  was  held  not  to  be  such 
suit.  In  this  respect  the  case  at  bar  is  governed  by  that  decision, 
and  the  petitioner  has  suffered  no  legal  wrong  in  being  denied  a 
trial  by  jury.  Kansas  v.  Ziebold,  123  U.  S.  623,  673.  See  also 
Carleton  v.  Rugg,  149  Mass.  550.  Since  this  is  not  a  pursuit  of 
an  individual  right,  but  essentially  an  inquest  into  a  matter  of 
public  import,  it  does  not  come  within  the  definition  of  suit 
given  in  Worcester  Color  Co.  v.  Henry  Wood's  Sons  Co.,  209  Mass. 
105. 

(c)  The  election  petition  is  not  criminal  in  its  form.  It  is 
expressly  provided  that  such  petitions  shall  be  governed  by  the 
rules  of  equity  practice  and  procedure,  so  far  as  applicable,  in 
the  absence  of  special  rules  of  court.  The  act  makes  distinct 
provisions  in  other  sections  for  criminal  prosecutions,  and  the 
election  petition  throughout  is  treated  as  civil  in  its  nature. 
Since  it  is  in  the  nature  of  a  quo  warranto,  it  is  a  civil  proceeding 
and  not  a  criminal  prosecution.  That  has  been  decided.  At- 
torney-General v.  Sullivan,  163  Mass.  446,  449;  Ames  v.  Kansas, 
111  U.  S.  449,  460.  See  also  State  v.  Thompson,  91  Minn.  279, 
and   State  v.   Moores,  56   Neb.    1.     But  it  is  contended  that  a 


ASHLEY  V.   JUSTICES  SUPERIOR  COURT.      SUP.   JUD.   CT.,    1917.       205 

punishment  criminal  and  infamous  in  its  nature  is  imposed  by 
the  act,  and  hence  that  it  is  obnoxious  to  Article  12  of  the 
Declaration  of  Rights,  which  guarantees  a  trial  by  jury  in  such 
cases.  It  is  provided  by  section  497  of  the  act,  as  amended  by 
St.  1914,  c.  783,  sec.  12,  that  "Whoever  is  found  by  final  judg- 
ment upon  an  election  petition  ...  to  have  committed  a  cor- 
rupt practice,  and  shall,  in  accordance  with  such  finding,  forfeit 
the  office  to  which  he  has  been  elected,  or  whoever  is  convicted 
in  a  criminal  proceeding  of  violating  any  provision  of  law  relating 
to  corrupt  practices  in  elections,  shall  be  disqualified  as  a  voter 
for  a  period  of  three  years  following  the  date  of  his  conviction, 
and  shall  be  deemed  ineligible  to  hold  public  office  for  said 
period." 

It  is  urged  that  deprivation  of  the  right  to  vote  and  to  hold 
public  office  for  a  period  of  three  years,  as  a  consequence  of  the 
finding  of  a  corrupt  practice  having  been  committed  by  the 
defendant  in  an  election  petition,  is  a  criminal  or  infamous 
punishment.  This  question  must  not  be  treated  by  itself  alone, 
but  must  be  considered  in  connection  with  the  Fortieth  Amend- 
ment to  the  Constitution,  which  became  operative  in  1912. 
That  Amendment  added  a  new  class  to  those  citizens  from  whom 
the  right  of  franchise  is  withheld  by  Article  3  of  the  Amendments, 
namely,  "persons  temporarily  or  permanently  disqualified  by 
law  because  of  corrupt  practices  in  respect  to  elections."  The 
effect  of  this  amendment  was  to  confer  upon  the  General  Court 
power  to  declare  by  general  law  disfranchisement  as  an  accom- 
paniment to  the  commission  of  corrupt  practices  in  elections.  It 
did  not  confine  or  limit  its  powers  in  this  respect  to  the  establish- 
ment of  the  fact  of  corrupt  practice  by  criminal  rather  than  by 
civil  proceedings.  It  conferred  by  implication  the  power  in 
broad  terms.  It  gave  ample  discretion  to  the  Legislature  as  to 
the  means  to  be  employed  for  the  ascertainment  of  the  fact,  by 
any  constitutional  means,  of  a  corrupt  practice  having  been 
committed.  It  authorized  the  Legislature  to  attach  disfranchise- 
ment for  corrupt  practices  in  connection  with  elections  upon 
the  same  footing  as  disfranchisement  because  of  being  a  pauper 
or  under  guardianship.  Manifestly  a  trial  by  jury  is  not  re- 
quired to  determine  whether  one  shall  be  a  pauper  or  placed 
under  guardianship  simply  because  deprivation  of  the  right  to 
vote  follows  as  a  result  of  that  status.  See  Dowdell,  Petitioner, 
169  Mass.  387;  Sporza  v.  German  Savings  Bank,  192  N.  Y.  8. 
Pauperism  and  guardianship  as  matter  of  common  knowledge 
have  been  generally  established  by  proceedings  in  which  there  is 


206  MASSACHUSETTS  ELECTION  CASES —    1917. 

i 

no  trial  by  jury.  The  circumstance  that  the  Fortieth  Amend- 
ment does  not  automatically  attach  disqualification  from  voting 
to  all  persons  found  to  have  committed  corrupt  practices,  but 
leaves  that  matter  to  be  settled  from  time  to  time  by  general 
law,  gives  no  additional  constitutional  rights  to  the  individual. 
He  cannot  demand  on  that  account  as  a  constitutional  right 
that  this  matter  be  settled  by  a  jury  when  he  is  not  otherwise 
entitled  to  it.  Therefore  it  is  needless  to  consider  the  bearing 
in  this  connection  of  United  States  v.  Waddell,  112  U.  S.  76; 
Ex  parte  Wilson,  114  Y.  S.  417,  and  People  v.  Kipleij,  171  111. 
44,  72,  relied  on  by  the  petitioner,  or  to  discuss  whether  deprivation 
of  the  right  to  vote  and  to  hold  office  as  isolated  factors  without 
the  imposition  of  fine  or  imprisonment  constitute  infamous 
punishment. 

Of  course  the  Legislature  cannot  by  a  mere  change  of  name  or 
of  form  convert  that  which  is  in  its  nature  a  prosecution  for  a 
crime  into  a  civil  proceeding  and  thus  deprive  parties  of  their 
rights  to  a  trial  by  jury.  The  Constitution  cannot  thus  be 
trifled  with.  Stock-bridge  v.  Mixer,  215  Mass.  415.  But  there  is 
nothing  to  prevent  the  Legislature  from  enlarging  proceedings 
and  remedies  in  their  nature  civil,  so  as  to  include  new  matters 
of  the  same  general  character.  Brown's  Case,  173  Mass.  498; 
Young  v.  Blaisdell,  138  Mass.  344;  Renado  v.  Lummus,  205 
Mass.  155,  158.  In  view  of  the  principles  declared  in  Attorney- 
General  v.  Sullivan,  163  Mass.  446,  and  Ames  v.  Kansas,  111 
U.  S.  449,  and  in  other  cases  before  cited,  it  is  unnecessary  to 
examine  State  v.  Markham,  160  Wis.  431;  S.  C.  162  Wis.  55, 
and  kindred  decisions,  or  to  determine  whether  in  the  light  of 
differing  constitutional  provisions  they  are  inconsistent  with  the 
conclusion  here  reached. 

(d)  Nothing  contrary  to  the  Constitution  is  perceived  in  the 
further  provision  that  one  found  to  have  committed  corrupt 
practices  shall  be  deemed  ineligible  to  hold  public  office.  The 
privilege  of  voting  is  so  closely  connected  with  the  right  to  hold 
office  that  power  to  deprive  of  the  former  may  well  include 
the  latter.  See  Opinion  of  the  Justices,  7  Mass.  523;  State  v. 
Van  Beek,  87  Iowa,  569;  State  v.  Smith,  14  Wis.  497.  Moreover, 
the  power  of  the  Legislature  to  determine  the  qualifications  re- 
quired of  those  elected  to  fill  municipal  offices  is  ample  and  need 
not  be  uniform  throughout  the  Commonwealth.  Graham  v. 
Roberts,  200  Mass.  152,  154,  155;  Cole  v.  Tucker,  164  Mass.  486. 
It  follows  that  the  act  imposes  no  unconstitutional  limitations 
upon  the  right  to  vote  or  to  hold  office. 


ASHLEY  V.   JUSTICES  SUPERIOR  COURT.      SUP.   JUD.   CT.,    1917.       207 

(e)  It  is  not  open  to  serious  question  that  the  acts  described 
in  the  statute  as  corrupt  practices  are  well  within  the  scope  of 
those  words  as  used  in  the  Fortieth  Amendment. 

(/)  The  provision  that  election  petitions  shall  be  entered  in 
the  Superior  Court  in  Suffolk  County  is  not  violative  of  any 
constitutional  provision.  The  General  Court  is  given  full  power 
and  authority,  by  chapter  1,  section  I,  Article  III  of  the  Con- 
stitution, "to  erect  and  constitute  judicatories  and  courts  of 
record  or  other  courts."  This  ample  grant  includes  by  necessary 
implication  power  to  fix  the  territorial  limits  within  which  such 
courts  shall  exercise  jurisdiction  and  the  places  in  which  they 
shallbe  held.  Having  created  by  the  instant  statute  a  new  kind 
of  civil  litigation,  there  is  no  basis  in  the  Constitution  for  limiting 
the  right  of  the  Legislature  to  say  that  such  causes  shall  be 
entered  in  Suffolk  County,  where  the  Superior  Court  always  is 
in  session.  The  right  of  the  petitioner  "to  obtain  right  and 
justice  freely"  as  guaranteed  by  Article  11  of  the  Declaration 
of  Rights  is  not  impaired  thereby.  The  Superior  Court  being 
a  court  of  general  jurisdiction,  there  is  nothing  to  prevent  the 
respondents  in  the  exercise  of  their  discretion  from  hearing 
election  petitions  where  the  public  interest  requires. 

(g)  It  follows  from  what  has  been  said,  without  further  dis- 
cussion, that  there  is  nothing  in  the  challenged  portions  of  the 
act  which  is  in  conflict  with  Article  9  of  the  Declaration  of 
Rights,  to  the  effect  that  "All  elections  ought  to  be  free;  and 
all  the  inhabitants  of  this  commonwealth,  having  such  qualifi- 
cations as  they  shall  establish  by  their  frame  of  government, 
have  an  equal  right  to  elect  officers,  and  to  be  elected,  for 
public  employments."  The  whole  purpose  of  the  act  is  to 
promote  and  insure  the  freedom  of  elections  by  discouraging  the 
improper  influence  of  elections  and  the  pollution  of  the  ballot 
through  corrupt  practices. 

(h)  The  contention  that  the  petitioner  is  denied  the  equal 
protection  of  the  laws  is  untenable.  It  is  elementary  that  the 
General  Court  may  make  reasonable  classifications  in  selecting 
the  subjects  of  legislation  and  determining  what  shall  be  included 
within  designated  inhibitions.  Such  classification  does  not  violate 
the  constitutional  requirement  for  equal  protection  of  the  laws 
unless  "plainly  and  grossly  oppressive  and  unequal,  or  contrary 
to  common  right."  Oliver  v.  Washington  Mills,  11  Allen,  268, 
279.  A  classification,  general  in  its  nature,  will  not  be  held  to 
be  unequal  when  there  appears  to  be  reasonable  ground  for  it, 
but  only  when  it  seems  to  be  simply  arbitrary,  based  upon  no 


208  MASSACHUSETTS  ELECTION  CASES  —  1917. 

sound  distinction  and  not  founded  upon  any  natural  difference 
or  rational  discrimination.  See  Commonwealth  v.  Libbey,  216 
Mass.  356,  358;  Young  v.  Duncan,  218  Mass.  346,  353;  Bogni 
v.  Perotti,  224  Mass.  152,  157;  Tax  Commissioner  v.  Putnam, 
227  Mass.  522,  and  cases  cited  in  each  of  these  decisions.  It 
is  impossible  in  the  nature  of  things  to  remove  from  office  as  a 
consequence  of  corrupt  practices  any  except  those  who  have 
been  elected.  Disfranchisement  and  ineligibility  to  hold  office 
attach  equally  to  everybody  convicted  of  the  violation  of  the 
criminal  provisions  of  the  act.  The  circumstance  that  no  like 
civil  proceeding  is  provided  against  defeated  candidates  for 
public  office  does  not  render  the  act  unequal  in  a  constitutional 
sense.  The  successful  perpetration  of  a  wrong  ordinarily  is 
punished  in  law  by  a  more  severe  penalty  than  a  thwarted  at- 
tempt to  commit  the  same  wrong.  This  is  true  even  in  prose- 
cutions for  crimes,  although  the  moral  turpitude  may  be  as 
great  in  one  case  as  in  the  other. 

(i)  There  is  no  constitutional  inequality  in  the  provision  that 
election  petitions  shall  be  brought  and  may  be  heard  in  Suffolk 
County,  while  prosecutions  for  criminal  violation  of  the  election 
laws  must  be  in  the  county  where  the  crime  is  alleged  to  have 
been  committed.  Misdemeanors  may  be  tried  and  finally  dis- 
posed of  in  local  courts,  while  felonies  of  a  certain  magnitude 
can  be  disposed  of  finally  only  at  the  county  seat,  even  upon 
plea  of  guilty.  Similar  differences  as  to  places  of  trial  are  found 
between  the  Probate  Courts,  the  Land  Court,  the  Superior 
Court  and  the  Supreme  Judicial  Court  sitting  at  nisi  prius. 

(j)  The  limitation  in  section  371  of  the  act  as  amended  by 
St.  1914,  c.  783,  sec.  11,  excepting  from  its  operations  elections 
of  town  officers  in  towns  of  less  than  10,000  inhabitants,  does 
not  impair  the  constitutional  validity  of  the  act.  The  New 
England  town  meeting  system  of  elections  and  government  in 
comparatively  small  communities  is  proverbial  as  one  of  the 
finest  illustrations  of  practical  democracy.  The  intimate  knowl- 
edge that  each  voter  in  such  comparatively  small  communities 
is  likely  to  possess  touching  the  honesty  and  general  qualifi- 
cations of  his  fellows  and  of  all  candidates  for  election  to  public 
office  well  may  have  been  regarded  as  the  best  security  against 
political  corruption.  The  difference  in  this  respect  between 
large  and  small  municipalities  furnishes  a  manifestly  reasonable 
line  of  demarcation.  The  precise  point  at  which  that  line  is 
drawn  in  the  present  instance  clearly  is  not  irrational.  Cole  v. 
Tucker,  164  Mass.  486;    Opinion  of  the  Justices,  138  Mass.  601, 


ASHLEY  V.   JUSTICES  SUPERIOR  COURT.      SUP.   JUD.   CT.,    1917.       209 

603;  Cunningham  v.  Mayor  of  Cambridge,  222  Mass.  574,  577; 
Brown's  Case,  173  Mass.  498;  Hayes  v.  Missouri,  120  U.  S.  68; 
Mallett  v.  North  Carolina,  181  U.  S.  589;  Ocampo  v.  United 
States,  234  U.  S.  91. 

(k)  The  act  is  not  in  derogation  of  the  constitutional  powers 
of  the  Supreme  Judicial  Court.  It  is  not  necessary  to  discuss 
this  subject  at  large.  This  court  is  recognized  as  the  court  of 
highest  final  decision  by  section  10  (d)  of  said  chapter  783;  It 
is  not  necessary  to  determine  the  extent  or  nature  of  the  powers 
of  this  court  to  correct  errors  of  law  committed  by  the  judges  of 
the  Superior  Court  if  in  any  case  there  should  be  an  unreasonable 
refusal  to  report  a  question  to  this  court.  This  conclusion  does 
not  shake  in  any  degree  what  was  said  by  Chief  Justice  Shaw  in 
Commomvealth  v.  Anthes,  5  Gray,  185,  232-236,  as  to  the  basis 
in  the  Constitution  for  the  Supreme  Judicial  Court  and  the 
scope  of  its  general  powers.  The  strength  of  that  discussion  and 
reasoning  stands  unimpaired. 

(I)  The  act  is  not  in  conflict  with  any  provision  of  the  Federal 
Constitution. 

The  trial  by  jury  secured  by  the  Seventh  Amendment  to  the 
Federal  Constitution  relates  only  to  the  courts  of  the  United 
States.  Bothwell  v.  Boston  Elevated  Railway,  215  Mass.  467, 
and  cases  cited  at  page  471;    Walker  v.  Sauvinet,  92  U.  S.  90. 

(m)  Trial  by  jury  is  not  essential  to  the  due  process  of  law 
secured  by  the  Fourteenth  Amendment  to  the  United  States 
Constitution.  Montana  Co.  v.  St.  Louis  Mining  &  Milling  Co., 
152  U.  S.  160,  171;  Dowdell,  Petitioner,  169  Mass.  387.  The 
instant  act  purports  to  afford  to  all  defendants  in  election 
petitions  a  full  and  fair  trial  before  impartial  judges  according 
to  fixed  laws  applicable  alike  to  all  persons  similarly  situated. 
This  is  a  sufficient  compliance  with  the  Fourteenth  Amendment. 
Marchant  v.  Pennsylvania  Railroad,  153  U.  S.  380. 

(n)  The  right  to  hold  an  elective  public  office  is  not  a  property 
right  within  the  meaning  of  the  Fourteenth  Amendment  of  the 
Federal  Constitution.  If  the  petitioner  should  be  deposed  from 
the  office  of  mayor  by  act  of  the  Legislature  or  by  any  judicial 
proceeding  in  the  courts  founded  on  such  act,  no  property  right 
secured  by  that  amendment  would  be  invaded.  That  was 
settled  after  great  deliberation,  with  ample  review  of  the  au- 
thorities and  a  full  discussion  of  fundamental  principles,  in 
Taylor  v.  Beckham,  178  U.  S.  548,  575,  577,  and  Attorney -General 
v.  Tillinghast,  203  Mass.  539,  545. 

(o)  It  was  said  by  Chief  Justice  Field,  in  Stone  v.  Smith,  159 


210  MASSACHUSETTS  ELECTION  CASES  —  1917. 

Mass.  413,  "It  is  settled  that  the  right  to  vote  is  not  one  of 
the  privileges  or  immunities  of  citizens  of  the  United  States 
within  the  meaning  of  Article  14  of  the  Amendments  to  the 
Constitution  of  the  United  States.  United  States  v.  Cruikshank, 
92  U.  S.  542;  Minor  v.  Happersett,  21  Wall.  162."  It  follows 
that  the  provisions  of  the  present  act  as  to  deprivation  of  the 
right  to  vote  and  to  hold  office  are  not  in  contravention  of  the 
United  States  Constitution.  Guinn  v.  United  States,  238  U.  S. 
347,  362,  363;    Myers  v.  Anderson,  238  U.  S.  368. 

(p)  It  was  held  in  Dinan  v.  Swig,  223  Mass.  516,  that  so 
much  of  St.  1914,  c.  783,  sec.  10,  as  undertakes  to  impose  upon 
the  courts  the  duty  of  inquiry  into  corrupt  practices  of  members 
of  the  General  Court  was  contrary  to  chapter  1,  section  III, 
Article  X  (and  see  chapter  1,  section  II,  Article  IV)  of  the  Con- 
stitution which  makes  each  branch  of  the  General  Court  the  final 
judge  of  the  returns,  elections  and  qualifications  of  its  own 
members.  It  is  a  well-settled  principle  of  constitutional  law 
that  one  part  of  a  statute  may  be  contrary  to  the  Constitution, 
while  the  rest  may  stand  as  valid,  provided  the  two  parts  are 
distinct  and  in  their  nature  separable  the  one  from  the  other, 
and  are  not  so  interwoven  and  mutually  dependent  as  to  require 
the  belief  that  the  Legislature  would  not  have  enacted  the  one 
without  the  other.  Warren  v.  Mayor  &  Aldermen  of  Charles- 
town,  2  Gray,  84,  98,  99;  Commonwealth  v.  Petranich,  183 
Mass.  217,  220;  County  of  Berkshire  v.  Cande,  222  Mass.  87,  90, 
91;  Salisbury  Land  &  Improvement  Co.  v.  Commonwealth,  215 
Mass.  371,  380;  Berea  College  v.  Kentucky,  211  U.  S.  45,  55; 
International  Text  Book  Co.  v.  Pigg,  217  U.  S.  91,  113.  It 
seems  plain  that  the  provisions  as  to  corrupt  practices  of  mem- 
bers of  the  General  Court  are  quite  distinct  and  separable  from 
the  rest  of  the  act  and  have  no  necessary  and  inherent  con- 
nection with  its  other  parts.  The  section  in  question  dealt  with 
that  matter  differently  from  the  way  in  which  the  act  dealt 
with  other  corrupt  practices.  The  Legislature  evidently  recog- 
nized that  they  constituted  two  different  classes  of  officers  under 
the  Constitution  and  must  be  treated  differently.  The  failure 
of  the  effort  to  include  members  of  the  Legislature  has  little 
connection  with  the  rest  of  the  statute,  which  can  stand  pre- 
cisely as  enacted  in  its  application  to  a  large  number  of  highly 
important  offices.  A  similar  decision  upon  this  point  was 
made  in  Diehl  v.   Totten,  32  No.  Dak.  131. 

It  is  manifest  that  the  election  petition  against  the  petitioner 
does   not   raise   questions    as    to    the   right   to   free   speech    and 


ASHLEY  V.   JUSTICES  SUPERIOR  COURT.      SUP.   JUD.   CT.,    1917.        211 

freedom  of  the  press.  Although  he  has  referred  to  these  ques- 
tions, he  has  not  argued  them  at  length,  and  doubtless  they  are 
not  open  to  him.  McGlue  v.  County  Commissioners,  225  Mass. 
59,  and  cases  collected  at  page  60;  Rail  &  River  Coal  Co.  v. 
Industrial  Commission  of  Ohio,  236  U.  S.  338,  349.  It  is,  there- 
fore, unnecessary  to  consider  them.  See  Adams  v.  Lanadon,  18 
Idaho,  483;  State  v.  Pierce,  163  Wis.  615;  Ex  parte  Harrison, 
212  Mo.  88. 

4.  It  has  been  assumed  in  favor  of  the  petitioner  in  the  dis- 
cussion thus  far,  but  without  examining  critically  the  matter  of 
remedy,  that  prohibition  would  be  open  to  him.  But  it  is 
plain  that  the  fourth  general  point  urged  by  him  —  namely, 
that  the  subpoena  having  been  made  returnable  fifteen  instead  of 
fourteen  days  after  the  filing  of  the  petition,  he  cannot  be  held 
to  answer  the  election  petition  —  cannot  properly  be  considered 
on  a  petition  for  a  writ  of  prohibition.  The  principles  which 
govern  the  issuance  of  that  extraordinary  writ  are  well  settled. 
It  will  not  be  granted  if  the  court  or  tribunal  against  which  it 
is  sought  has  jurisdiction  of  the  cause  or  matter  which  it  pro- 
poses to  adjudicate.  Prohibition  lies  only  to  restrain  a  clear 
excess  of  jurisdiction  about  to  be  committed  against  one  who 
has  not  submitted  thereto  where  there  is  no  other  adequate 
remedy.  It  does  not  issue  to  correct  or  restrict  errors  or  ir- 
regularities of  a  tribunal  which  is  acting  within  its  jurisdiction, 
although  proceeding  improperly  in  the  exercise  of  that  juris- 
diction. It  can  be  invoked  to  prevent  a  court  from  exercising  a 
jurisdiction  which  it  does  not  possess.  It  will  not  be  granted 
to  remedy  the  errors  of  a  judicial  tribunal  acting  within  its 
jurisdiction,  but  lies  only  to  restrain  such  tribunal  from  acting 
outside  its  jurisdiction.  Washburn  v.  Phillips,  2  Met.  296,  298, 
299;  Connecticut  River  Railroad  v.  County  Commissioners,  127 
Mass.  50;  Hyde  Park  v.  Wiggin,  157  Mass.  94,  99;  Tehan  v. 
Justices  of  the  Municipal  Court,  191  Mass.  92;  Welch  v.  Fox, 
205  Mass.  113;  Mayor  of  Someroille  v.  Justices  of  the  Police 
Court,  220  Mass.  393,  396;  Ex  parte  Oklahoma,  220  U.  S. 
191,  208.  It  has  been  held  in  the  application  of  these  principles 
that,  where  a  tribunal  is  acting  under  an  unconstitutional 
statute,  it  may  thus  be  restrained.  Connecticut  River  Railroad 
v.  County  Commissioners,  127  Mass.  50.  It  already  has  been 
pointed  out  that  the  election  petition  here  complained  of  is 
pending  before  a  legally  constituted  court,  which  has  jurisdiction 
over  the  subject-matter.  The  petitioner  has  appeared  specially 
in  answer  to  the  election  petition,  and  has  pleaded  specially  the 


212  MASSACHUSETTS  ELECTION   CASES  —  1917. 

matter  of  which  he  here  complains.  But  he  brought  his  present 
petition  within  a  few  days  after  filing  that  special  appearance 
and  plea,  without  waiting  for  the  Superior  Court  to  pass  upon 
its  merits.  It  appears  from  the  record  that  immediately  upon 
the  filing  of  the  present  petition  all  proceedings  upon  the  elec- 
tion petition  were  suspended.  The  matters  set  out  in  the  special 
plea  of  the  petitioner  in  the  election  petition  are  clearly  within 
the  jurisdiction  of  that  court.  It  is  provided  by  the  corrupt 
practices  act,  section  369,  as  amended  by  St.  1914,  c.  783, 
sec.  10  {d),  that  "Upon  an  election  petition  the  decision  of  the 
three  justices  of  the  Superior  Court  assigned  as  aforesaid,  or  of 
a  majority  of  them,  shall  be  final  and  conclusive  upon  all 
matters  in  controversy,  whether  interlocutory  or  final,  and 
whether  in  matters  of  fact  or  matters  of  law.  But  the  said 
justices,  or  a  majority  of  them,  may  in  their  discretion,  after 
a  finding  of  facts,  either  of  their  own  motion  or  at  the  request 
of  either  party,  report  the  case  to  the  Supreme  Judicial  Court 
for  determination  by  the  full  court."  Without  passing  upon 
the  scope  or  signification  of  these  provisions,  it  is  not  open  to 
question  that  jurisdiction  of  this  matter  is  vested  in  the  Superior 
Court.  There  is  no  suggestion  that  the  petitioner's  special  plea 
will  not  be  considered  on  its  merits  by  the  Superior  Court  and 
decided  according  to  its  view  of  the  law.  It  is  an  indubitable 
result  of  well-settled  principles  that  this  point  is  not  open  to  the 
petitioner  in  this  proceeding. 

Petition  dismissed. 


MANSFIELD   V.   SECRETARY  OF  COMM.      SUP.   JUD.   CT.,    1917.        213 


SUPREME  JUDICIAL   COURT. 

Frederick  W.  Mansfield  v.  Secretary  of  the   Common- 
wealth. 

(Reported  in  228  Mass.  262.) 

Suffolk,    Oct.    18,    1917  — Oct.    19,    1917.      Present,  Rugg,  C.J.,  Braley, 
DeCourcy,  Pierce  and  Carroll,  JJ. 

Elections.  Mandamus.  —  Upon  a  petition  for  a  writ  of  mandamus,  which  is  a 
proceeding  at  law,  this  court  has  no  jurisdiction  to  change  or  reverse  a  decision  as 
to  the  facts  made  by  the  single  justice  who  heard  the  case  unless  the  finding  of 
fact  is  not  warranted  by  the  evidence. 

Elections.  Official  Ballot.  —  Upon  a  petition  for  a  writ  of  mandamus  a  finding 
of  a  single  justice,  warranted  by  the  evidence  presented  before  him,  that  the  sur- 
name ot  a  candidate  for  Governor  always  has  been  spelled  "McCall",  and  never 
has  been  spelled  "MacCall,"  that  the  name  of  the  candidate  is  "McCall",  and 
not  "MacCall",  and  that  under  St.  1913,  c.  835,  sec.  259,  "the  name  of  Frederick 
W.  Mansfield  should  precede  that  of  Samuel  W.  McCall  in  the  arrangement  of 
names  in  alphabetical  order  upon  the  official  ballot  of  candidates  for  Governor," 
is  a  finding  of  fact  which  is  not  open  to  revision  by  this  court. 

Petition,  filed  on  Oct.  16,  1917,  for  a  writ  of  mandamus 
addressed  to  the  Secretary  of  the  Commonwealth  commanding 
him,  in  the  preparation  of  the  official  ballot  for  the  election  of 
Governor  under  St.  1913,  c.  835,  sec.  259,  which  provides  that 
the  names  on  the  official  ballot  for  election  to  office  shall  be 
arranged  in  alphabetical  order  according  to  the  surnames,  to 
print  the  name  of  the  petitioner,  Frederick  W.  Mansfield,  before 
the  name  of  Samuel  W.  McCall,  an  opposing  candidate  for  the 
office  of  Governor. 

The  answer  of  the  respondent,  as  filed  by  the  Attorney- 
General,  contained,  among  other  allegations,  the  averment 
"that  the  name  'McCall'  is  an  abbreviation  of  the  name 
'MacCall,'  and  that  according  to  accepted  usage  and  custom 
pertaining  at  the  time  of  the  adoption  of  the  statute  requiring 
names  on  official  ballots  to  be  arranged  in  alphabetical  order 
according  to  surnames,  and  at  the  present  time  names  such  as 
'  McCall '  are  arranged  with  names  spelled  'MacCall'  and 
similar  names,  and  precede  in  alphabetical  arrangement  the 
name  'Mansfield.'" 

The  case  was  heard  by  Crosby,  J.,  who  made  certain  findings 
of  fact,  including  those  that  are  stated  in  the  opinion  and  con- 
cluding as  follows:    "I  further  find  that  the  surname  of  Samuel 


214  MASSACHUSETTS  ELECTION   CASES  —  1917. 

W.  McCall  has,  so  far  as  the  evidence  shows,  always  been  spelled 
'McCall'  and  never  has  been  spelled  'MacCall,'  and  that  the 
surname  of  Frederick  W.  Mansfield,  so  far  as  the  evidence 
shows,  has  always  been  spelled  'Mansfield.'  I  further  find  that 
Mr.  McCall's  name  is  'McCall'  and  not  'MacCall.'  Upon 
these  facts,  so  far  as  it  is  a  question  of  fact,  I  find  that  the 
name  of  Frederick  W.  Mansfield  should  precede  that  of  Samuel 
W.  McCall  in  the  arrangement  of  names  in  alphabetical  order 
upon  the  official  ballot  of  candidates  for  Governor." 

The  single  justice  reported  the  case,  reserving  all  questions  of 
law  arising  upon  the  record  for  determination  by  the  full  court, 
such  disposition  to  be  made  of  the  case  as  the  full  court  should 
direct. 

F.  W.  Mansfield  pro  se. 

H.  W.  Barnum,  Assistant  Attorney-General,  for  the  respondent. 

Rugg,  C.J.  This  is  a  petition  for  a  writ  of  mandamus  to 
compel  the  Secretary  of  the  Commonwealth  to  place  the  name  of 
the  petitioner  as  candidate  for  Governor  before  that  of  Samuel 
W.  McCall  upon  the  official  ballot  for  the  impending  State 
election. 

It  is  the  duty  of  the  respondent  to  arrange  the  names  of  the 
several  candidates  for  Governor  upon  the  ballot  "in  alphabetical 
order  according  to  the  surnames."  St.  1913,  c.  835,  Part  III, 
sec.  259.  There  has  been  a  hearing  before  a  single  justice  who 
has  made  a  finding  of  facts.  His  conclusion,  after  a  narration 
of  various  matters  of  probative  value  on  the  issue,  is  in  these 
words:  "Upon  these  facts,  so  far  as  it  is  a  question  of  fact,  I 
find  that  the  name  of  Frederick  W.  Mansfield  should  precede 
that  of  Samuel  W.  McCall  in  the  arrangement  of  names  in 
alphabetical  order  upon  the  official  ballot  of  candidates  for 
Governor.  I  reserve  all  questions  of  law  arising  upon  the  record 
for  the  determination  of  the  full  court,  such  disposition  of  the 
case  to  be  made  as  that  court  shall  direct." 

A  petition  for  a  writ  of  mandamus  is  a  proceeding  at  law. 
This  court  has  no  jurisdiction  in  a  proceeding  at  law  to  change 
or  reverse  a  decision  as  to  the  facts  made  by  the  tribunal 
charged  with  the  duty  of  ascertaining  the  facts.  The  weight  of 
evidence  in  such  proceeding  is  not  open  to  revision  by  this 
court.  Electric  Welding  Co.  Ltd.  v.  Prince,  200  Mass.  386,  391; 
Commonwealth  v.  National  Contracting  Co.  201  Mass.  248.  The 
rule  in  equity  is  different. 


MANSFIELD  V.   SECRETARY  OF  COMM.      SUP.   JTJD.   CT.,    1917.        215 

The  alphabetical  precedence  of  surnames  under  the  circum- 
stances here  disclosed  is  a  question  of  fact  and  not  of  law.  The 
precise  point  is  whether  in  arranging  the  names  in  alphabetical 
order  McCall  should  be  treated  as  equivalent  to  the  com- 
bination of  letters  MacCall,  and  as  if  so  spelled.  How  it  is 
spelled  in  truth,  and  whether  the  real  name  is  "MacCall"  or 
McCall,"  and  whether  the  latter  form  is  an  abbreviation  of  the 
former  are  questions  of  fact.  We  know  of  no  rule  of  law  by 
which  to  settle  those  questions. 

The  only  question  of  law  open  on  this  record  is  whether  the 
decision  of  the  single  justice,  to  the  effect  that  the  surname 
"Mansfield"  precedes  the  surname  "McCall"  in  alphabetical 
order,  and  that  the  latter  is  not  to  be  treated  as  the  equivalent  of 
"  MacCall,"  finds  any  justification  in  the  evidence.  That  finding 
cannot  be  pronounced  erroneous  as  matter  of  law  if  there  is  any 
evidence  of  substance  to  support  it.  It  is  only  when  such  finding 
is  unwarranted  by  the  evidence  that  it  can  be  set  aside.  Wade 
v.  Smith,  213  Mass.  34;    Bailey  v.  Harden,  .193  Mass.  277. 

The  subsidiary  facts  found  by  the  single  justice  are  in  effect 
that  there  is  a  general  custom  in  the  United  States  and  England, 
in  arranging  and  indexing  surnames  in  books  and  catalogues, 
to  place  names  beginning  with  "Mc"  before  those  beginning  with 
"Man;"  and  that  this  custom  is  nearly  if  not  quite  universally 
observed  by  librarians,  and  prevails  generally  in  the  arrangement 
of  names  in  directories  and  in  a  large  number  of  other  publica- 
tions, including  dictionaries,  encyclopaedias  and  digests.  The 
letters  "Mc"  or  Mac"  and  also  "M"  as  part  of  a  surname 
are  derived  from  the  Gaelic  and  mean  "son  of." 

But  he  also  finds  that  there  are  a  number  of  other  publica- 
tions and  lists  in  which  names  beginning  with  "Man"  precede 
those  beginning  with  "  Mc."  These  include  the  Boston  telephone 
and  other  directories,  certain  acts  and  resolves,  and  the  voting 
list  of  the  town  of  Winchester,  where  Mr.  McCall  resides.  He 
finds,  further,  that  the  surname  of  the  candidate  has  in  fact 
always  been  spelled  "McCall"  and  has  never  been  spelled 
"  MacCall."  There  was  evidence  tending  to  support  all  these 
findings.  That  hardly  can  be  disputed  upon  this  record.  Its 
weight  is  not  for  us  to  consider.  Although  it  reasonably  might 
have  been  inferred  that  the  name  "McCall"  is  an  abbreviated 
form  of  the  full  name  "MacCall,"  and  therefore  ought  to  be  so 
treated  in  alphabetical  arrangement,  and  that  such  arrangement 
was  customary  and  hence  proper,  this  cannot  be  said  to  be  the 
only   rational   inference   of   which   the   subsidiary   facts   and   the 


216  MASSACHUSETTS  ELECTION  CASES  —  1917. 

evidence  are  susceptible.  It  cannot  be  declared  as  matter  of  law 
that  the  ultimate  finding  to  the  effect  that  the  name  "  Mans- 
field" precedes  the  name  "McCall"  in  alphabetical  order  is 
erroneous.     It  is  not  wholly  unsupported  by  evidence. 

It  follows  as  a  necessary  consequence  of  the  finding  of  fact 
made  by  the  single  justice  that  the  writ  ought  to  issue  com- 
manding the  respondent  to  arrange  the  names  of  candidates  in 
accordance  therewith  by  placing  that  of  Mansfield  before  that  of 
McCall. 

So  ordered. 


BEAUCHEMIN  V.   FLAGG.      SUP.   JUD.   CT.,    1918.  217 


SUPREME   JUDICIAL   COURT. 

J.  Wilfrid  Beauchemin  and  Others  v.  J.  Frank  Flagg  and 

Another. 

(Reported  in  229  Mass.  23.) 

Worcester,  Oct.  2,   1917  — Jan.  2,   1918.     Present,  Rugg,  C.J.,    Braley, 
DeCourcy,  Crosby  and  Pierce,  JJ. 

Elections.  Marking.  —  In  the  provision  of  the  election  laws  contained  in  St. 
1913,  c.  835,  sec.  292,  as  amended  by  St.  1914,  c.  435,  that  "The  voter  on  receiv- 
ing his  ballot  shall,  .  .  .  except  in  the  case  of  voting  for  presidential  electors, 
prepare  bis  ballot  by  making  a  cross  ( X )  in  the  square  at  the  right  of  the  name 
of  each  candidate  for  whom  he  intends  to  vote,"  the  requirement  that  the  cross 
shall  be  marked  "in  the  square"  is  merely  directory  and  not  mandatory,  and  a 
vote  for  a  candidate  may  be  counted  where  the  cross  was  marked  by  the  voter 
against  the  name  of  the  candidate  between  that  name  and  the  square,  if  the  inten- 
tion of  the  voter  to  vote  for  the  candidate  is  manifest. 

Petition,  filed  on  March  20,  1917,  by  ten  qualified  voters  of 
the  town  of  Hubbardston  for  a  writ  of  mandamus  addressed  to 
J.  Frank  Flagg,  the  moderator  of  the  annual  town  meeting  held 
on  Feb.  5,  1917,  and  William  H.  Wheeler,  the  town  clerk  of 
Hubbardston,  commanding  them  to  make  a  recount  for  school 
committee,  counting  as  blank  seven  ballots  which  at  the  town 
meeting  were  counted  for  Maud  Vanston  Lufkin  as  a  member  of 
the  school  committee  and  declaring  George  H.  Kelton,  the 
opposing  candidate,  to  have  been  elected  a  member  of  the 
school  committee. 

The  case  was  heard  by  Carroll,  J.,  who  made  the  findings  of 
fact  and  the  ruling  of  law  that  are  described  in  the  opinion.  He 
made  an  order  for  a  decree  that  a  writ  of  mandamus  should 
issue,  and  at  the  request  of  the  parties  reported  the  case  for 
determination  by  the  full  court.  If  the  ruling  of  law  made  by 
the  single  justice  was  right,  the  writ  to  issue.  If  the  ruling 
made  by  him  was  wrong,  the  petition  was  to  be  dismissed. 

The  case  was  argued  at  the  bar  in  October,  1917,  before 
Rugg,  C.J.,  Loring,  Braley,  De  Courcy  and  Pierce,  JJ., 
and  afterwards  was  submitted  on  briefs  to  all  the  justices  except 
Loring  and  Carroll,  JJ. 

H.  W.  Blake  for  the  petitioners. 

C.  M.  Thayer,  F.  C.  Smith,  Jr.,  and  G.  A.  Gaskill,  for  the 
respondents,  submitted  a  brief. 


218  MASSACHUSETTS  ELECTION   CASES  —  1918. 

De  Courcy,  J.  At  the  annual  town  meeting  in  Hubbardston 
Maud  Vanston  Lufkin  was  a  candidate  for  the  school  committee. 
On  the  original  count  and  at  the  recount  she  was  declared 
elected.  Seven  of  the  ballots  counted  for  her  were  marked, 
each  with  a  cross  against  her  name  and  between  the  square  and 
her  name,  but  not  in  the  square.  If  these  seven  ballots  are  not 
counted  for  her,  George  H.  Kelton,  her  opponent,  will  be  elected. 
The  single  justice  before  whom  the  petition  for  a  writ  of  man- 
damus was  heard,  found  as  a  fact  that  it  was  the  intention  of 
the  voter  in  each  case  to  vote  for  Maud  Vanston  Lufkin.  He 
ruled  as  matter  of  law,  however,  that  the  statute  required  the 
voter  to  express  his  choice  in  the  square,  and  not  elsewhere  on 
the  ballot,  and  the  ballots  must  be  counted  as  blanks,  and  re- 
ported the  case  to  the  full  court  with  a  stipulation  that  if  this 
ruling  was  not  right  the  petition  should  be  dismissed. 

Where  a  ballot  is  so  marked  that  upon  inspection  it  indicates 
with  reasonable  certainty  the  candidate  for  whom  the  elector 
intended  to  vote,  the  vote  should  be  counted  in  accordance  with 
that  intent,  provided  the  voter  has  substantially  complied  with 
the  requisites  of  the  election  statute.  Strong,  Petitioner,  20  Pick. 
484;  Ray  v.  Ashland,  221  Mass.  223;  Woodward  v.  Sarsons, 
L.  R.  10  C.  P.  733.  It  is  settled  by  the  finding  of  the  single 
justice  that  these  seven  voters  intended  to  cast  their  ballots  for 
Mrs.  Lufkin.  That  distinguishes  this  case  from  O'Connell  v. 
Mathews,  177  Mass.  518  and  Flanders  v.  Roberts,  182  Mass.  524, 
where  the  intent  of  the  voter  was  left  to  mere  conjecture,  as  the 
cross  was  marked  in  the  square  opposite  a  blank;  and  from  Brewster 
v.  Sherman,  195  Mass.  222,  where  the  single  justice  was  unable 
to  determine  how  the  voter  intended  to  vote  on  the  question  sub- 
mitted. 

That  these  seven  voters  honestly  attempted  to  comply  with 
the  terms  of  the  statute  is  not  questioned.  In  order  to  deter- 
mine whether  there  was  a  substantial  compliance  with  its  pro- 
visions it  is  well  to  have  before  us  the  following  sections  which 
are  applicable:  — 

St.  1913,  c.  835,  sec.  259:  "...  Ballots  shall  be  so  printed 
as  to  give  to  each  voter  an  opportunity  to  designate  by  a  cross 
(X),  in  a  square  at  the  right  of  the  name  and  designation  of 
each  candidate  .  .  .  his  choice  of  candidates.  .  .  ." 

Section  292  (as  amended  by  St.  1914,  c.  435):  "The  voter 
on  receiving  his  ballot  shall,  .  .  .  except  in  the  case  of  voting 
for  presidential  electors,  prepare  his  ballot  by  making  a  cross 
(X)  in  the  square  at  the  right  of  the  name  of  each  candidate  for 


BEAUCHEMIN  V.   FLAGG.      SUP.   JUD.   CT.,    1918.  219 

whom  he  intends  to  vote  or  by  inserting  the  name  and  residence 
of  such  candidate  in  the  space  provided  therefor  and  making  a 
cross  in  the  square  at  the  right;  and,  upon  a  question  submitted 
to  the  vote  of  the  people,  by  making  a  cross  in  the  square  at 
the  right  of  the  answer  which  he  intends  to  give." 

Section  303:  ".  .  .  If  a  voter  marks  more  names  than  there 
are  persons  to  be  elected  to  an  office,  or  if  his  choice  cannot  be 
determined,  his  ballot  shall  not  be  counted  for  such  office." 

It  is  to  be  noted  that,  although  section  292  provides  that 
the  voter  shall  make  a  cross  "in  the  square  at  the  right  of  the 
name,"  the  only  provision  which  expressly  forbids  the  counting 
of  a  ballot  deposited  in  the  ballot  box  is  section  303,  and  that 
applies  only  to  cases  where  the  voter's  choice  cannot  be  deter- 
mined. 

The  Legislature,  in  contested  election  cases,  has  construed  this 
requirement  as  to  marking  a  cross  in  the  square  to  be  directory 
and  not  mandatory,  where  the  voter's  intent  is  manifest.  See 
Moore  v.  Booth,  1910,  House  Document  No.  259  and  Riley  v. 
Aldrich,  1904,  House  Document  No.  343,  where  crosses  were 
marked  between  the  candidate's  name  and  the  square.  Under 
the  earlier  statute  it  was  likewise  held  that  such  informality 
does  not  nullify  the  ballot.  Shepard  v.  Sears,  Mass.  Election 
Cases,  1886-1902  (Russell's  ed.),  30;  Jones  v.  Loring,  36; 
Adams  v.  Moore,  79. 

The  precise  question  here  involved  has  not  been  before  this 
court.  In  Ray  v.  Ashland,  221  Mass.  223,  226,  the  candidate's 
name  was  not  printed  on  the  ballot,  and  the  voter  used  a  paster 
on  which  the  candidate's  name  appeared.  Section  259  of  the 
election  statute  provides:  "Blank  spaces  shall  be  left  at  the 
end  of  the  list  of  candidates  for  each  different  office,  equal  to 
the  number  to  be  elected  thereto,  in  which  the  voter  may  insert 
the  name  of  any  person  not  printed  on  the  ballot  for  whom  he 
desires  to  vote  for  such  office."  Instead  of  placing  the  paster 
in  the  blank  space  the  voter  placed  it  over  the  name  of  the 
candidate  printed  on  the  ballot.  It  was  held  that  the  ballot 
properly  might  be  counted  as  a  vote  for  the  person  named  on 
the  slip,  the  statutory  provision  as  to  the  precise  place  of  in- 
serting the  name  being  directory  and  not  mandatory.  In  our 
opinion  that  case  in  principle  governs  the  case  at  bar;  and  the 
language  used  in  the  opinion  is  equally  applicable  here:  "The 
statute  does  not  say  that  he  [the  voter]  must  use  this  mode  of 
expressing  his  will  or  his  ballot  is  defective.  If  the  construction 
by  implication  the  petitioner  urges  is  adopted,  he  [Kelton]  gets 


220  MASSACHUSETTS   ELECTION  CASES  —  1918. 

an  office  to  which  he  has  not  been  elected,  unless  the  will  of 
majority  of  the  voters  at  an  election,  where  no  fraud  or  mis- 
conduct appears  or  is  claimed,  is  nullified,  a  result  wholly  in- 
consistent with  the  spirit  of  our  election  laws.  The  Legislature, 
if  it  intended  to  restrict  the  voter  to  the  use  of  the  blank  spaces 
[squares]  alone,  should  have  directed  in  appropriate  language 
that  this  was  the  only  way  in  which  the  voter  could  express  an 
independent  choice." 

The  decisions  in  other  jurisdictions  as  to  such  irregularities 
in  marking  a  ballot  are  not  uniform.  In  some  States  the  Massa- 
chusetts rule  is  adopted,  and  emphasis  is  placed  upon  giving 
effect  to  the  voter's  intention  where  it  can  be  fairly  determined 
on  inspection  of  the  ballot.  In  other  States  the  provisions  of  the 
local  statute  as  to  the  position  of  the  cross  mark  are  construed 
to  be  mandatory;  or  emphasis  is  placed  on  the  possibility  that 
marking  the  ballot  in  an  improper  place  may  reveal  the  identity 
of  the  voter,  and  render  the  ballot  invalid  for  that  reason.  For 
collection  of  cases  see  20  Ann.  Cas.  672,  674;  47  L.  R.  A.  806, 
827-831;  15  Cyc.  354,  357.  Mass.  Election  Cases  1886-1892 
(Russell's  ed.),  editor's  note,  89-100. 

To  avoid  misapprehension  it  may  be  said  that  this  decision 
does  not  involve  the  question  whether  the  location  of  the  cross 
constituted  a  "mark  upon  a  ballot  by  which  it  may  be  identi- 
fied," within  the  prohibition  of  section  295.  Presumably  the 
single  justice  determined  that  question  of  fact  in  the  negative, 
as  he  did  not  report  it  for  our  consideration. 

For  the  reasons  hereinbefore  stated  a  majority  of  the  court 
are  of  opinion  that  the  statute  did  not  make  it  mandatory  to 
count  these  seven  ballots  as  blanks;  and  in  accordance  with  the 
terms  of  the  report  the  petition  should  be  dismissed. 

Ordered  accordingly. 


INDEX   DIGEST.  221 


INDEX  DIGEST. 


APPORTIONMENT   COMMISSIONERS. 

A  petition  for  a  writ  of  mandamus  addressed  to  the  Suffolk  County  appor- 
tionment commissioners,  declaring  void  an  attempted  apportionment  of  rep- 
resentation in  the  legislative  districts  of  that  county  and  ordering  the  com- 
missioners to  perform  their  duty  in  conformity. with  Article  21  of  the  Amend- 
ments to  the  Constitution,  may  be  maintained  by  a  voter  in  a  district  against 
which  discrimination  was  made  in  the  attempted  apportionment.  Donovan 
v.  Apportionment  Commissioners  (225  Mass.  55),  p.  179. 

Upon  the  question  of  granting  such  a  petition,  evidence  as  to  the  reasons 
that  influenced  the  commissioners  in  making  the  apportionment  sought  to 
be  set  aside  is  immaterial,  and  the  report  of  the  commissioners  must  be  judged 
by  what  appears  on  its  face  in  the  light  of  the  facts  judicially  known  to  the 
court.    Ibid. 

An  attempted  apportionment  of  representation  in  the  legislative  districts 
of  Suffolk  County  by  commissioners  selected  under  St.  1913,  c.  835,  sec.  390, 
which  allots  three  representatives  to  7,946  voters  and  only  two  representa- 
tives to  8,613  voters,  and  allots  two  representatives  to  4,854  voters  and  only 
one  representative  to  5,596,  is  void,  because  it  does  not  apportion  the  rep- 
resentatives assigned  to  Suffolk  County  "equally  as  nearly  as  may  be,  accord- 
ing to  the  relative  number  of  legal  voters  "  as  required  by  Art.  21  of  the  Amend- 
ments to  the  Constitution.    Ibid. 

A  report  of  the  Essex  County  commissioners  made  under  Article  21  of  the 
Amendments  to  the  Constitution,  of  the  division  of  that  county  into  repre- 
sentative districts  and  the  apportionment  among  those  districts  of  the  repre- 
sentatives allotted  to  them  by  St.  1916,  c.  270,  sec.  24,  can  be  called  in  question 
in  the  courts  only  by  the  Attorney-General  representing  the  public,  or  by 
one  who  shows  that  his  constitutional  rights  have  been  impaired.  McGlue  v. 
County  Commissioners  (225  Mass.  59),  p.  183. 

Accordingly  a  voter  in  a  legislative  district  of  that  county  against  which  no 
unjust  discrimination  has  been  made  cannot  maintain  a  petition  for  a  writ  of 
mandamus  to  set  aside  such  a  report  of  the  county  commissioners  on  account 
of  alleged  discriminations  against  other  districts.     Ibid. 

Upon  a  petition  by  a  voter  of  legislative  District  No.  14  of  Essex  County 
against  the  county  commissioners  of  that  county  for  a  writ  of  mandamus  to 
set  aside  their  report  apportioning  the  legislative  representatives  in  that  county, 
it  was  held  that  the  petition  must  be  dismissed,  because  an  excess  of  174  voters 
above  the  representative  unit  did  not  show  that  the  petitioner's  constitutional 
rights  had  been  violated.     Ibid. 

As  to  the  third  report  of  the  Suffolk  County  apportionment  commissioners, 
it  was  held  that,  while  the  division  and  apportionment  made  by  the  report 
were  not  ideal,  the  inequalities  of  voting  power  between  the  different  districts 
were  not  so  great  and  the  means  of  avoiding  them  were  not  so  clear  as  to  compel 
this  court  to  decide  that  there  was  a  grave  and  unnecessary  inequality  between 
the  different  districts  in  violation  oi  the  requirements  of  the  Constitution. 
Brophy  v.  Apportionment  Commissioners  (225  Mass.  124),  p.  189. 


222  INDEX  DIGEST. 

APPORTIONMENT    COMMISSIONERS  —  Concluded. 

The  Suffolk  County  apportionment  commissioners,  elected  under  St.  1913, 
c.  835,  sec.  390,  in  1915  and  every  tenth  year  thereafter,  who  are  directed  to 
"so  divide  said  county  into  representative  districts  of  contiguous  territory  as 
to  apportion  the  representation  of  said  county  as  nearly  as  may  be,  according 
to  the  number  of  voters  of  the  several  districts,"  must  perform  their  duties  as 
directed  by  Article  21  of  the  Amendments  to  the  Constitution.  Attorney- 
General  v.  Apportionment  Commissioners  (224  Mass.  598),  p.  165. 

And,  where  it  is  manifest  from  the  inspection  of  an  apportionment  attempted 
to  be  made  by  them  that  there  is  grave,  unnecessary  and  unreasonable  in- 
equality in  the  representation  assigned  by  them  to  different  districts,  the 
Constitution  has  been  violated  and  their  attempted  action  is  void.     Ibid. 

Inequalities  which  were  held  to  show  gross  and  palpable  inequalities,  ex- 
tending to  a  considerable  number  of  the  districts,  and  to  have  been  sufficient 
to  make  the  attempted  apportionment  void.     Ibid. 

A  petition  for  a  writ  of  mandamus  addressed  to  the  Suffolk  County  apportion- 
ment commissioners,  who  had  filed  a  report  purporting  to  make  an  apportion- 
ment of  representation  in  the  legislative  districts  in  that  county  which  was  void 
as  in  violation  of  Article  21  of  the  Amendments  in  the  Constitution,  command- 
ing them  to  proceed  with  the  performance  of  their  duties  under  St.  1913,  c.  835, 
in  accordance  with  the  provisions  of  the  Constitution,  affords  the  appropriate 
form  of  relief  and  is  a  remedy  expressly  provided  by  section  502  of  the  statute 
named  for  enforcing  the  provisions  of  that  chapter.     Ibid. 

The  remedy  by  mandamus  described  above  is  available  to  a  citizen  and 
voter  interested  in  the  execution  of  the  laws.     Ibid. 

In  the  case  above  described  it  was  held  that,  the  public  interests  being  in- 
volved, the  Attorney-General  might  institute  and  maintain  a  petition  for  a 
writ  of  mandamus  to  vindicate  the  public  right.     Ibid. 

On  such  a  petition  by  the  Attorney-General,  a  clause  in  the  reservation  for 
determination  of  the  case  by  this  court,  stating  that,  if  the  question  whether 
the  respondents  acted  in  good  faith  was  material  this  court  might  draw  con- 
clusions from  the  apportionment  itself,  was  disregarded  by  this  court  because 
this  court  has  no  power  to  decide  facts  in  a  proceeding  at  law.     Ibid. 

In  the  case  above  described  it  was  held  that  in  issuing  the  writ  of  mandamus 
no  specific  time  need  be  fixed  for  the  completion  by  the  commissioners  of  their 
work,  it  being  assumed  that  they  would  be  actuated  by  a  consciousness  of 
serious  public  duty  with  the  obligations  thereby  entailed.     Ibid. 

APPORTIONMENT   OF   SENATORS   AND   REPRESENTATIVES. 

By  Article  21  of  the  Amendments  to  the  Constitution,  providing  for  the 
dividing  of  the  counties  by  special  commissioners  "into  representative  districts 
of  contiguous  territory,  so  as  to  apportion  the  representation  assigned  to  each 
county  equally,  as  nearly  as  may  be,  according  to  the  relative  number  of  legal 
voters  in  the  several  districts  of  each  county,"  the  principle  of  practical  equality 
of  representation  among  all  the  voters  of  the  Commonwealth  is  established. 
Attorney -General  v.  Apportionment  Commissioners  (224  Mass.  598),  p.  165. 

The  Suffolk  County  apportionment  commissioners  elected  under  St.  1913 
c.  835,  sec.  390,  in  1915  and  in  every  tenth  year  thereafter,  who  are  directed 
to  "so  divide  said  county  into  representative  districts  of  contiguous  territory 
as  to  apportion  the  representation  of  said  county,  as  nearly  as  may  be,  accord- 
ing to  the  number  of  voters  in  the  several  districts,"  must  perform  their  duties 
as  directed  by  Article  21  of  the  Amendments  to  the  Constitution.     Ibid. 


INDEX  DIGEST.  223 

APPORTIONMENT       OF       SENATORS       AND     REPRESENTATIVES  — 

Concluded. 

And  where  it  is  manifest,  from  the  inspection  of  an  apportionment,  attempted 
to  be  made  by  them,  that  there  is  grave,  unnecessary  and  unreasonable  ine- 
quality in  the  representation  assigned  by  them  to  different  districts,  the  Con- 
stitution has  been  violated  and  their  attempted  action  is  void.     Ibid. 

Inequalities,  held  to  show  gross  and  palpable  inequalities  extending  to  a 
considerable  number  of  districts,  and  to  have  been  sufficient  to  make  the 
attempted  apportionment  void.     Ibid.  t 

BALLOT. 

Ballot  held  to  have  been  marked  so  imperfectly  that  voter's  choice  on 
question  of  license  could  not  be  determined.  Isaac  Brewster  v.  Charles  H. 
Sherman  &  Others  (195  Mass.  222),  p.  132. 

The  requirements  of  St.  1898,  c.  548,  sees.  141,  142,  145,  as  to  the  time  of 
filing  nomination  papers  and  the  certificates  thereon,  although  binding  on  the 
officers  whose  duty  it  is  to  prepare  and  pass  upon  the  official  ballot,  do  not 
invalidate  ballots  cast  for  a  candidate  nominated  by  papers  filed  too  late  and 
not  properly  certified.    Blackmer  v.  Hildreih  et  at.  (181  Mass.  29),  p.  95. 

CAUCUS. 

If  a  caucus  is  called  for  a  certain  hour,  and,  it  being  known  that  the  regularly 
elected  warden  will  be  absent,  a  temporary  warden  is  elected  a  few  minutes 
before  the  hour  named  to  fill  the  vacancy  and  when  the  caucus  opens  and 
thereafter  acts  as  warden,  semble,  that  the  election  of  the  warden  is  good  under 
St.  1898,  c.  548,  sec.  129,  giving  the  power  to  fill  vacancies  "at  a  caucus;" 
at  any  rate,  there  is  a  warden  de  facto,  and  the  votes  cast  at  the  caucus  will  not 
be  affected  by  the  irregularity.  Commonwealth  v.  Rogers  (181  Mass.  184), 
p.  99. 

An  indictment  for  aiding  and  abetting  illegal  voting  at  a  caucus  is  none  the 
less  sustained  because  it  appears  that  there  were  informalities  at  the  caucus, 
if  they  did  not  make  the  vote  of  the  caucus  void.    Ibid. 

See  Indictment. 

CAUCUS   LAWS. 

See  Mandamus. 

CONSPIRACY. 

At  the  trial  of  an  indictment  for  a  conspiracy  to  procure  persons  to  vote 
illegally  at  a  certain  caucus,  evidence  that  fraudulent  voters  were  spoken  to 
by  one  of  the  conspirators  before  all  of  them  had  come  into  the  scheme  is 
admissible,  in  connection  with  proof  that  the  others  did  come  in  and  by  impli- 
cation adopted  the  act,  and  because  the  usual  way  of  proving  a  conspiracy  is 
by  showing  a  series  of  acts  on  the  part  of  the  several  defendants  all  converging 
to  one  point.     Commonwealth  v.  Rogers  (181  Mass.  184),  p.  99. 

On  the  trial  of  an  indictment  for  conspiracy  to  procure  persons  to  vote 
illegally  at  a  caucus,  there  is  no  variance  if  it  appears  that  when  the  conspiracy 
was  formed  the  conspirators  did  not  know  any  of  the  persons  named  in  the 
indictment  as  the  persons  to  be  procured,  and  that  one  of  them  was  not  spoken 
to  until  12  o'clock  on  the  day  of  the  caucus  when  all  the  plans  were  complete. 
In  such  a  case  the  fact  that  the  conspiracy  is  indictable  in  ite  initial  stages  does 
not  prevent  its  being  indicted  in  the  shape  which  it  ultimately  assumes.    Ibid. 


224  INDEX  DIGEST. 

CONSPIRACY  —  Concluded. 

At  the  trial  of  an  indictment  for  a  conspiracy  to  procure  persons  to  vote 
illegally  at  a  certain  caucus,  it  was  held  that  there  was  sufficient  evidence  to  go 
to  the  jury  of  the  guilt  of  one  of  the  defendants,  who  was  present  at  the  pre- 
liminary meetings,  which  were  held  in  his  house,  and  who  contributed  money 
toward  the  illegal  scheme  and  helped  at  the  time  of  the  caucus.    Ibid. 

At  the  trial  of  an  indictment  for  a  conspiracy  to  procure  persons  to  vote 
illegally  at  a  certain  caucus,  an  exception  was  taken  to  a  refusal  to  rule,  that 
no  unfavorable  inference  should  be  drawn  against  one  of  the  defendants,  who 
acted  as  de  facto  warden  at  the  caucus,  because  he  delayed  for  half  an  hour  the 
opening  of  the  caucus,  if  that  delay  was  on  account  of  the  enclosures  or  pens 
outside  the  guard  rail.  There  was  independent  evidence  that  the  delay  was  for 
the  purpose  of  facilitating  the  carrying  off  of  certain  ballots  and  giving  time 
to  take  them  to  the  place  where  the  fraudulent  voters  were  assembled.  Held, 
that  the  ruling  rightly  was  refused.    Ibid. 

CONSTITUTIONAL   LAW. 

Apportionment  of  Representation. 

Who  may  question  constitutionally. 

A  petition  for  a  writ  of  mandamus  addressed  to  the  Suffolk  County  appor- 
tionment commissioners  declaring  void  an  attempted  apportionment  of  rep- 
resentation in  the  legislative  districts  of  that  county  and  ordering  the  commis- 
sioners to  perform  their  duty  in  conformity  to  Article  21  of  the  Amendments 
to  the  Constitution  may  be  maintained  by  a  voter  in  a  district  against  which 
discrimination  was  made  in  the  attempted  apportionment.  Donovan  v. 
Apportionment  Commissioners  (225  Mass.  55),  p.  179. 

A  report  of  the  Essex  County  commissioners  made  under  Art.  21  of  the 
Amendments  to  the  Constitution  of  the  division  of  that  county  into  repre- 
sentative districts,  and  the  apportionment  among  those  districts  of  the  repre- 
sentatives allotted  to  them  by  St.  1916  c.  270,  sec.  24,  can  be  called  in  question 
in  the  courts  only  by  the  Attorney-General  representing  the  public,  or  by  one 
who  shows  that  his  constitutional  rights  have  been  injured.  McGlue  v.  County 
Commissioners  (225  Mass.  59),  p.  183. 

Accordingly  a  voter  in  a  legislative  district  of  that  county  against  which  no 
unjust  discrimination  has  been  made  cannot  maintain  a  petition  for  a  writ 
of  mandamus  to  set  aside  such  a  report  of  the  county  commissioners  on  account 
of  alleged  discriminations  against  other  districts.    Ibid. 

Whether  apportionment  was  constitutional. 

An  attempted  apportionment  of  representation  in  the  legislative  districts 
of  Suffolk  County  by  commissioners  elected  under  St.  1913  c.  835,  sec.  390, 
which  allots  three  representatives  to  7,946  voters  and  only  two  representa- 
tives to  8,613  voters,  and  allots  two  representatives  to  4,854  voters  and  only 
one  representative  to  5,596,  is  void,  because  it  does  not  apportion  the  rep- 
resentatives assigned  to  Suffolk  County  "equally,  as  nearly  as  may  be, 
according  to  the  relative  number  of  legal  voters,"  as  required  by  Article  21  of 
the  Amendments  to  the  Constitution.  Donovan  v.  Apportionment  Commis- 
sioners (225  Mass.  55),  p.  179. 

Upon  the  question  of  granting  a  petition  for  a  writ  of  mandamus  declaring 
an  apportionment  void  and  directing  the  commissioners  to  make  a  proper 
apportionment,  evidence  as  to  the  reasons  that  influenced  the  commissioners 
in  making  the  apportionment  sought  to  be  set  aside  is  immaterial,  and  the 
report  of  the  commissioners  must  be  judged  by  what  appears  on  its  face  in  the 
light  of  the  facts  judicially  known  to  the  court.    Ibid. 


INDEX  DIGEST.  225 

CONSTITUTIONAL    LAW  —  Continued. 

Apportionment  of  Representation  —  Concluded. 

As  to  the  third  report  of  the  Suffolk  County  apportionment  commissioners 
it  was  held  that,  while  the  division  and  apportionment  made  by  the  report 
were  not  ideal,  the  inequalities  of  voting  power  between  the  different  districts 
were  not  so  great,  and  the  means  of  avoiding  them  were  not  so  clear,  as  to 
compel  this  court  to  decide  that  there  was  a  grave  and  unnecessary  inequality 
between  the  different  districts  in  violation  of  the  requirements  of  the  Con- 
stitution.    Brophy  v.  Apportionment  Commissioners  (225  Mass.  124),  p.  189. 

Upon  a  petition  by  a  voter  of  legislative  district  No.  14  of  Essex  County 
against  the  county  commissioners  of  that  county  for  a  writ  of  mandamus  to 
set  aside  their  report  apportioning  the  legislative  representation  in  that  county, 
it  was  held  that  the  petition  must  be  dismissed,  because  an  excess  of  174 
voters  above  the  representative  unit  did  not  show  that  the  petitioner's  consti- 
tutional rights  had  been  violated.  McGlue  v.  County  Commissioners  (225  Mass. 
59),  p.  183. 

Caucus  Laws. 

Those  provisions  of  the  election  act,  St.  1898,  c.  548,  which  regulate  caucuses 
and  voting  at  them  are  constitutional.  Commonwealth  v.  Rogers  (181  Mass. 
184),  p.  99. 

The  provision  of  St.  1898,  c.  548,  sec.  91,  that  no  person  having  voted  in 
the  caucus  of  one  political  party  shall  be  entitled  to  vote  or  take  part  in  the 
caucus  of  another  political  party  within  the  ensuing  twelve  months,  is  valid. 
Ibid.  ■ 

St.  1898,  c.  548,  sec.  92,  requiring  voting  lists  to  be  used  as  check  lists  in 
balloting  at  caucuses,  is  valid.    Ibid. 

Elections. 

Those  provisions  of  the  election  act,  St.  1898,  c.  548,  which  regulate  caucuses 
and  voting  at  them,  are  constitutional.  Commonwealth  v.  Rogers  (181  Mass. 
184),  p.  99. 

The  provision  of  St.  1898,  c.  548,  sec.  91,  that  no  person  having  voted  in 
the  caucus  of  one  political  party  shall  be  entitled  to  vote  or  take  part  in  the 
caucus  of  another  political  party  within  the  ensuing  twelve  months,  is  valid. 
Ibid. 

St.  1898,  c.  548,  sec.  92,  requiring  voting  lists  to  be  used  as  check  lists  in 
balloting  at  caucuses,  is  valid.    Ibid. 

So  much  of  St.  1914,  c.  783,  sec.  10,  as  undertakes  to  impose  upon  the  courts 
the  duty  of  inquiry  into  corrupt  practices  in  connection  with  the  election  of 
members  of  the  General  Court  is  contrary  to  chapter  1,  section  III,  Article  X, 
of  the  Constitution,  which  provides  that  "  The  house  of  representatives  shall  be 
the  judge  of  the  returns,  elections,  and  qualifications  of  its  own  members." 
Dinan  v.  Swig  (223  Mass.  516),  p.  160. 

Separation  of  Departments  of  Government. 

So  much  of  St.  1914,  c.  783,  sec.  10,  as  undertakes  to  impose  upon  the  courts 
the  duty  of  inquiry  into  corrupt  practices  in  connection  with  the  election  of 
members  of  the  General  Court  is  contrary  to  Article  30  of  the  Declaration  of 
Rights,  which  declares  the  separation  of  the  legislative  and  judicial  depart- 
ments of  the  government.    Dinan  v.  Swig  (223  Mass.  516),  p.  160. 

Unconstitutionality  of  Separable  Portion  of  a  Statute. 

The  portion  of  the  corrupt  practices  act  contained  in  St.  1914,  c.  783,  sec.  10, 
which  in  Dinan  v.  Swig,  223  Mass.  516,  was  held  to  be  unconstitutional  and 


226  INDEX  DIGEST. 

CONSTITUTIONAL    LAW  —  Concluded. 

Unconstitutionality  of  Separable  Portion  of  a  Statute  —  Concluded. 
void  as  in  violation  of  the  provisions  of  the  Constitution,  which  make  each 
branch  of  the  General  Court  the  final  judge  of  the  returns,  elections  and  quali- 
fications of  its  own  members,  is  distinct  and  separate  from  the  rest  of  the  act, 
and  does  not  affect  the  validity  of  the  other  parts.  Ashley  v.  Three  Justices 
of  Superior  Court  (228  Mass.  63),  p.  194. 

See  General  Court. 
Jury  and  Jurors. 
Voting  Machine. 

CORRUPT   PRACTICES. 

So  much  of  St.  1914,  c.  783,  sec.  10,  as  undertakes  to  impose  upon  the  courts 
the  duty  of  inquiry  into  corrupt  practices  in  connection  with  the  election  of 
members  of  the  General  Court  is  unconstitutional.  Dinan  v.  Swig  (223  Mass. 
516),  p.  160. 

See  House  of  Representatives. 
Superior  Court. 
DOMICILE. 

Personal  absence  for  a  while  does  not  necessarily  change  one's  domicile, 
and  personal  presence  in  a  place  for  a  somewhat  prolonged  period,  in  absence 
of  intention,  does  not  necessarily  establish  domicile  there.  Clarkson  v.  Vinson 
(Senate,  1912),  p.  47. 

ELECTIONS. 

Irregularities  in. 

The  illegal  distribution  of  circulars,  etc.,  within  the  distance  from  the  polls 
prohibited  by  statute  will  not  invalidate  an  election  in  absence  of  evidence 
showing  that  the  voters  were  actually  influenced  thereby,  and  in  absence 
that  such  distribution  was  authorized  or  consented  to  by  the  candidate  in 
whose  behalf  such  distribution  was  conducted.  Harvey  v.  Bradbury  (House, 
1920),  p.  58. 

The  House  is  the  judge  of  the  election  and  qualification  of  its  members. 
Ibid. 

If  the  intent  of  the  voter  can  fairly  be  determined,  effect  should  be  given 
such  intent  and  the  vote  counted  in  accordance  therewith.    Ibid. 

The  House  will  not  disenfranchise  voters  who  have  deposited  their  ballots 
in  good  faith  unless  so  directed  specifically  by  statute.     Ibid. 

Filing  Nomination  Papers. 

The  requirements  of  St.  1898,  c.  548,  sees.  141,  142,  145,  as  to  the  time  of 
filing  nomination  papers  and  the  certificates  thereon,  although  binding  on  the 
officers  whose  duty  it  is  to  prepare  and  pass  upon  the  official  ballot,  do  not 
invalidate  ballots  cast  for  a  candidate  nominated  by  papers  filed  too  late  and 
not  properly  certified.     Blackmer  v.  Hildreth  (181  Mass.  69),  p.  95. 

Nomination  of  Candidates.     Irregularities. 

Under  R.  L.  c.  11,  sec.  149,  when  a  certificate  of  a  nomination  for  a  State 
office  has  been  filed  with  the  Secretary  of  the  Commonwealth  and  is  "in 
apparent  conformity  with  law,"  it  is  "valid  unless  objections  thereto  are 
made  in  writing"  and  are  filed  in  the  manner  prescribed  by  that  section. 
Attorney-General  v.  Campbell  (191  Mass.  497),  p.  123. 


INDEX  DIGEST.  227 

ELECTIONS  —  Continued. 

Nomination  of  Candidates.     Irregularities  —  Concluded. 

If  the  Governor  has  ordered  that  a  special  election  be  held  to  fill  a  vacancy 
in  the  office  of  a  clerk  of  courts  at  the  same  time  as  the  annual  State  election, 
and  a  candidate  for  the  office  is  nominated  at  a  caucus  for  the  nomination  of 
State  officers  held  on  the  same  day  on  which  the  precept  for  the  special  election 
is  issued,  so  that  the  provisions  of  R.  L.  c.  11,  sees.  89,  90,  in  regard  to  the 
calling  of  a  caucus  for  a  special  election  are  not  complied  with,  and  if  the 
nomination  is  certified  to  the  secretary  of  the  Commonwealth  and  the  name 
goes  unchallenged  upon  the  printed  ballot,  and  the  candidate  is  elected,  the 
irregularities  in  regard  to  the  making  of  the  nomination  do  not  invalidate  his 
election.     Ibid. 

Meetings,  Calling  of. 

A  warrant  in  writing  for  a  meeting  of  a  fire  district  signed  by  the  chief 
engineer  is  a  sufficient  compliance  with  the  provision  of  R.  L.  c.  32,  sec.  55, 
that  such  a  meeting  shall  be  called  when  requested  in  writing  by  the  chief 
engineer.     Fritz  v.  Crean  (182  Mass.  433),  p.  109. 

An  act  creating  a  fire  district  provided  that  it  might  "adopt  by-laws  pre- 
scribing by  whom  and  how  meetings  may  be  called  and  notified."  One  of  the 
by-laws  of  the  district  provided  "  that  the  annual  meeting  shall  be  called  ac- 
cording to  law."  The  district  passed  a  vote  requiring  copies  of  the  warrant 
calling  a  meeting  to  be  posted  at  various  places  named,  but  this  vote  did  not 
operate  as  an  amendment  to  the  by-law  because  not  adopted  in  the  manner 
required  for  such  an  amendment.  A  meeting  of  the  district  was  notified  in 
accordance  with  R.  L.  c.  32,  sec.  55,  but  the  vote  requiring  the  posting  of 
copies  of  the  warrant  was  not  complied  with.  Held,  that  the  meeting  was 
notified  properly  "according  to  law"  as  required  by  the  by-laws.    Ibid. 

Under  R.  L.  c.  32,  sec.  55,  if  a  declaration  by  the  moderator  of  a  meeting  of 
a  fire  district  is  necessary  in  order  to  complete  an  election  of  an  officer,  a  declara- 
tion made  by  tellers  in  the  presence  of  the  moderator  and  received  by  the 
meeting  is  a  declaration  by  the  moderator  within  the  meaning  of  the  statute. 
Ibid. 

A  warrant  in  writing  for  the  meeting  of  a  fire  district  signed  by  the  chief 
engineer  is  sufficient  compliance  with  the  provision  of  R.  L.  c.  32,  sec.  55, 
that  such  meeting  shall  be  called  when  requested  in  writing  by  the  chief  en- 
gineer. 

Notice  of  Meeting,  Irregularities  in,  will  not  avoid  Election. 

Where  the  notice  of  the  meeting  for  the  election  of  State  officers  was  served 
in  a  town  only  four  days  before  the  election  instead  of  the  seven  days  as  re- 
quired by  statute,  the  validity  of  the  election  of  a  representative  is  not  neces- 
sarily affected.  If  the  voters  are  actually  notified  the  purpose  of  the  law  is 
accomplished.     Pratt  v.  Sargent  (House,  1912),  p.  45. 

Official  Ballot,  Order  of  Names  on. 

Upon  a  petition  for  a  writ  of  mandamus  a  finding  of  a  single  justice,  war- 
ranted by  the  evidence  presented  before  him,  that  the  surname  of  a  candidate 
for  Governor  always  has  been  spelled  "McCall"  and  never  has  been  spelled 
"MacCall,"  that  the  name  of  the  candidate  is  "McCall"  and  not  "MacCall," 
and  that  under  St.  1913,  c.  835,  sec.  259,  "the  name  of  Frederick  W.  Mans- 
field should  precede  that  of  Samuel  W.  McCall  in  the  arrangement  of  names 
in  alphabetical  order  upon  the  official  ballot  of  candidates  for  Governor,"  is 


228  INDEX  DIGEST. 

ELECTIONS  —  Continued. 

Official  Ballot,  Order  of  Names  on — Concluded. 

a  finding  of  fact  which  is  not  open  to  revision  by  this  court.     Mansfield  v. 
Secretary  of  the  Commonwealth  (228  Mass.  262),  p.  213. 

See  Ballots. 
Caucus. 

Constitutional  Law. 
Fraud  and  Intimidation. 
Marking  Official  Ballot. 
Voting  Machine. 

Election  Circulars. 

The  House  will  not  declare  vacant  the  seat  of  a  member,  on  account  of  the 
use  of  a  misleading  circular  or  poster  used  previous  to  the  election,  in  absence 
of  evidence  that  such  circular  did  actually  mislead  and  influence  the  voters. 
Callahan  v.  Sweeney  (House,  1921),  p.  69. 


Election  Petitions. 


Election  Officer. 


See  General  Court. 
Practice. 
Superior  Court. 


The  provisions  of  St.  1898,  c.  548,  sec.  173,  prohibiting  a  candidate  for  elec- 
tion from  acting  as  an  election  officer  in  a  voting  precinct,  does  not  apply  to 
the  moderator  of  a  town  meeting.    Wheeler  v.  Carter  (180  Mass.  382),  p.  87. 

St.  1898,  c.  548,  sec.  179,  provides  that  the  selectmen  of  towns  not  divided 
into  voting  precincts  shall  appoint  tellers  at  least  five  days  before  an  election, 
and  that  the  presiding  officers  at  the  election  may  appoint  additional  tellers. 
At  a  town  election  the  selectmen  had  failed  to  appoint  tellers  and  the  town 
clerk,  presiding  before  the  election  of  the  moderator,  appointed  tellers  who 
acted  throughout  the  meeting.  Semble,  that  the  authority  to  appoint  addi- 
tional tellers  included  the  right  to  act  when  the  selectmen  had  failed  to  appoint 
any  previously  and  that  the  appointment  was  good,  and  held,  that  at  any  rate, 
the  tellers  were  de  facto  officers  and  an  irregularity  in  their  appointment  would 
not  affect  the  legality  of  the  election.    Ibid. 

Evidence. 

If  one  who  has  been  declared  elected  chief  engineer  at  a  meeting  of  a  fire 
district  is  present  at  a  recount,  to  guard  his  interests,  he  is  not  estopped 
thereby  from  setting  up  the  illegality  of  the  recount.  Fritz  v.  Crean  (182 
Mass.  433),  p.  109. 

Semble,  that  where  oral  evidence  of  the  doings  of  a  meeting  of  a  fire  dis- 
trict has  been  put  in  without  objection,  it  is  too  late  to  take  the  ground  that 
the  declaration  by  the  moderator  of  the  vote  of  the  meeting  must  appear  by 
the  records  of  the  clerk  alone,  but,  if  such  a  record  is  required,  a  record  stat- 
ing that  there  was  a  declaration  of  the  election  accepted  by  the  meeting  im- 
ports a  declaration  by  the  moderator,  if  such  a  declaration  is  necessary.    Ibid. 

Evidence  that  certain  voters  in  an  open  town  meeting  refrained  from  voting 
because  a  candidate  for  selectman  acted  as  moderator  is  immaterial  and  in- 
admissible.    Wheeler  v.  Carter  (180  Mass.  382),  p.  87. 


INDEX  DIGEST.  229 

ELECTIONS  —  Continued. 
Evidence  —  Concluded. 

At  the  trial  of  an  indictment  for  a  conspiracy  to  procure  persons  to  vote 
illegally  at  a  certain  caucus,  an  exception  was  taken  to  a  refusal  to  rule  that 
no  unfavorable  inference  should  be  drawn  against  one  of  the  defendants  who 
acted  as  de  facto  warden  at  the  caucus,  because  he  delayed  for  half  an  hour  in 
opening  the  caucus,  if  that  delay  was  on  account  of  the  enclosures  or  pens 
outside  the  guard  rail.  There  was  independent  evidence  that  the  delay  was 
for  the  purpose  of  facilitating  the  carrying  off  of  certain  ballots  and  giving 
time  to  take  them  to  the  place  where  the  fraudulent  voters  were  assembled. 
Held,  that  the  ruling  rightly  was  refused.  Commonwealth  v.  Rogers  (181  Mass. 
184),  p.  99. 

At  the  trial  of  an  indictment  for  a  conspiracy  to  procure  persons  to  vote 
illegally  at  a  certain  caucus,  the  presiding  judge,  as  the  ground  for  admitting 
the  declarations  of  one  defendant  as  evidence  against  the  others,  stated  his 
ruling  that  there  was  sufficient  evidence  of  a  conspiracy  against  all  the  de- 
fendants. Held,  that  the  ruling  was  right  and  the  statement  of  it  proper. 
When  a  preliminary  finding  of  fact  on  the  part  of  the  judge  is  necessary  for 
such  a  purpose  there  is  no  duty  to  conceal  it  from  the  jury.     Ibid. 

On  a  trial  for  conspiracy,  declarations  of  the  several  defendants,  admissible 
against  themselves  but  not  against  the  others,  may  be  admitted,  the  jury  being 
cautioned  that  statements  made  after  the  conspiracy  had  been  carried  out  are 
admissible  only  against  the  party  making  them.    Ibid. 

On  a  trial  for  conspiracy  the  weight  of  the  testimony  of  fellow  conspirators 
properly  is  left  to  the  jury.    Ibid. 

At  the  trial  of  an  indictment  for  a  conspiracy  to  procure  persons  to  vote 
illegally  at  a  certain  caucus,  it  was  held  that  there  was  sufficient  evidence  to 
go  to  the  jury  of  the  guilt  of  one  of  the  defendants,  who  was  present  at  the 
preliminary  meetings,  which  were  held  in  his  house,  and  who  contributed 
money  toward  the  illegal  scheme  and  helped  at  the  time  of  the  caucus.    Ibid. 

Best  Evidence. 

Official  tally  sheets  kept  by  defendant  indicted  for  willfully  making  false 
count  and  report  of  votes  in  election  are  best  evidence  to  show  that  count 
was  kept  by  him.    Commonwealth  v.  Edgerton  (200  Mass.  318),  p.  147. 

At  the  trial  of  an  election  officer  charged  with  making  false  count  and  report 
of  votes,  it  is  not  necessary  to  produce  original  ballots  to  show  what  true 
count  of  votes  was,  but  official  registrars  may  testify,  refreshing  recollections 
from  sheets  used  by  them  at  recount.    Ibid. 

Refreshing  Recollection. 

Official  registrars  at  recount  of  vote  may  testify,  refreshing  recollections 
from  tally  sheets  kept  by  them,  at  trial  of  election  officer  charged  with  will- 
fully making  false  count  and  report  of  votes,  production  of  original  ballots 
not  being  necessary.    Ibid. 

Relevancy. 

Testimony  of  bystanders  at  the  counting  of  the  votes  at  an  election,  held  under 
the  circumstances,  relevant  evidence  at  the  trial  of  election  officials  charged 
with  willfully  making  false  counting  and  reporting  of  votes.     Ibid. 

False  counting  and  reporting  of  votes. 

At  the  trial  of  an  indictment  under  St.  1907,  c.  560,  sec.  410,  against  an  elec- 
tion officer  for  willfully  performing  contrary  to  law  the  duties  imposed  upon 
him  by  section  270  of  the  same  chapter  in  making  a  false  count  of  votes  in  an 


230  INDEX  DIGEST. 

FALSE    COUNTING    AND    REPORTING    OF    VOTES  —  Continued. 

election  and  knowingly  making  a  false  report  of  the  result  of  the  canvass  and 
count  of  votes,  the  official  tally  sheets  kept  by  the  defendant  in  the  counting 
of  the  votes  are  competent  and  are  the  best  evidence  to  show  what  the  count 
kept  by  the  defendant  was.    Ibid. 

At  the  trial  of  an  indictment  under  St.  1907,  c.  560,  sec.  410,  against  an  elec- 
tion officer  for  willfully  performing  contrary  to  law  the  duties  imposed  upon 
him  by  section  270  of  the  same  chapter  in  making  a  false  count  of  votes  in  an 
election  and  knowingly  making  a  false  report  of  the  result  of  the  canvass  and 
count  of  votes,  the  testimony  of  bystanders,  who  observed  the  defendant's 
conduct  in  keeping  a  false  tally  of  the  votes,  is  admissible  to  show  the  facts 
which  they  observed  although  they  were  not  election  officers  and  were  interested 
in  the  election  only  as  citizens.     Ibid. 

At  the  trial  of  an  indictment  under  St.  1907,  c.  560,  sec.  410,  against  an 
election  officer  for  willfully  performing  contrary  to  law  the  duties  imposed  upon 
him  by  section  270  of  the  same  chapter  in  making  a  false  count  of  votes  in  an 
election  and  knowingly  making  a  false  report  of  the  result  of  the  canvass  and 
count  of  votes,  the  Commonwealth,  against  the  objection  of  the  defendant, 
introduced  the  testimony  of  the  registrars  of  voters  to  show  that  upon  a 
recount  by  them  it  appeared  that  the  ballots  had  not  been  counted  and  re- 
ported correctly,  and  the  jury  were  allowed  to  inspect  the  sheets  used  by  the 
registrars  at  the  recount  and  used  by  them  in  testifying  to  refresh  their  recol- 
lections, the  jury  being  instructed  that  those  sheets  were  not  evidence  and 
could  not  be  considered  by  them.  The  defendant  contended  that  instead  of 
this  testimony  the  ballots  themselves,  being  the  best  evidence,  should  have  been 
produced  for  the  jury  to  count.  Held,  that,  assuming  that  the  production  of  the 
ballots  could  have  been  compelled,  which  was  doubted,  there  being  no  question 
raised  as  to  any  irregularities  appearing  on  the  face  of  the  ballots,  the  number 
of  the  ballots  cast  on  one  side  and  the  other  was  a  matter  of  computation,  and 
that  the  computation  could  be  testified  to  by  any  one  who  made  it,  and  there- 
fore that  the  registrars,  refreshing  their  recollections  by  referring  to  the  sheets 
used  by  them  at  the  recount,  properly  could  testify  as  to  the  result  of  the 
recount  so  far  as  it  related  to  the  count  and  report  made  by  the  defendant,  and 
that  the  jury  properly  were  allowed  to  inspect  the  sheets  for  the  purpose  of 
assisting  them  in  passing  upon  the  credibility  of  the  registrars.    Ibid. 

At  the  trial  of  an  indictment  under  St.  1907,  c.  560,  sec.  410,  against  an 
election  officer  for  willfully  performing  contrary  to  law  the  duties  imposed  upon 
him  by  section  270  of  the  same  chapter  in  making  a  false  count  of  votes  upon 
the  question  of  the  granting  of  licenses  for  the  sale  of  intoxicating  liquors  in  a 
city  and  in  knowingly  making  a  false  report  of  the  result  of  the  canvass,  there 
was  evidence  that  the  defendant  made  marks  on  a  tally  sheet  as  another  election 
officer  called  off  the  answers  on  the  ballots,  for  the  purpose  of  keeping  an 
account  of  the  votes;  that  in  doing  so  he  marked  twenty-one  more  votes  for 
license,  fifteen  less  votes  against  license  and  six  less  blanks  than  the  other 
election  officer  called  off  to  him  and  then  afterwards  appeared  to  be  the  true 
numbers  upon  a  recount  by  the  registrars  of  voters;  and  also  that,  when  the 
defendant  became  aware  that  two  bystanders  were  following  the  count,  he 
kept  the  tally  correctly.  There  was  other  evidence  from  which  guilty  knowledge 
on  the  part  of  the  defendant  could  have  been  inferred.  It  further  appeared  that 
the  defendant  and  the  election  officer  who  called  off  the  answers  to  him  signed 
the  tally  sheets  thus  marked  by  the  defendant,  and  that  these  tally  sheets  were 
delivered  to  and.  received  by  those  charged  with  the  duty  of  declaring  the 
results  of  the  election  as  the  reports  of  the  results  of  the  votes  counted  and 
canvassed  by  the  defendant  and  the  other  election  officer  who  signed  them. 
Held,  that  there  was  evidence  for  the  jury  that  the  defendant  willfully  made 


INDEX  DIGEST.  231 

FALSE    COUNTING    AND    REPORTING    OF    VOTES  —  Concluded. 

a  false  count  and  knowingly  made  a  false  report  of  the  canvass  of  votes;  that 
the  count  and  canvass  by  the  defendant  and  the  election  officer  who  called  off 
the  answers  were  none  the  less  a  count  and  canvass  by  the  defendant  because 
he  merely  marked  the  tally  sheets  while  the  other  handled  the  ballots;  and  that 
the  tally  sheets  signed  by  the  two  constituted  and  were  intended  to  constitute 
reports  of  the  results  of  the  votes  counted  by  them.    Ibid. 

FRAUD  AND  INTIMIDATION. 

There  is  no  valid  ground  for  contesting  an  election  on  account  of  alleged 
intimidation. if  the  result  would  not  be  changed,  and  such  would  be  the  event 
unless  a  number  of  voters  had  been  prevented  from  voting,  sufficient  to  have 
varied  the  result.  Bullock  and  Lattimore  v.  Burke  and  Driscoll  (House,  1921) , 
p.  73. 

The  sending  to  the  voters  of  a  district  of  a  circular  containing  misleading  and 
false  statements  in  respect  to  a  candidate  for  the  House  will  not  invalidate  an 
election,  if  such  circular  is  not  shown  actually  to  have  influenced  voters,  or  to 
have  been  authorized,  consented  to,  or  knowingly  ratified  by  the  candidate 
in  whose  behalf  the  same  was  sent,  nor  unless  it  appears  that  the  result  of  the 
election  was  materially  affected  thereby.    Ibid. 

Fraud  to  invalidate  an  election  must  be  shown  to  have  affected  the  result, 
and  such  fraud  must  be  known  and  ratified  by  the  candidate.    Ibid. 

The  question  in  each  case  must  be,  has  the  great  body  of  the  electors  had 
an  opportunity  to  express  their  choice  through  the  medium  of  the  ballot  and 
according  to  law,  and  this  question  must  be  decided  in  the  light  of  all  the 
facts  and  circumstances  shown  in  the  evidence.     Ibid. 

GENERAL   COURT. 

The  provisions  of  the  corrupt  practices  act,  that  election  petitions  shall  be 
entered  in  the  Superior  Court  in  Suffolk  County,  is  within  the  power  of  the 
General  Court,  and  the  respondent's  right  under  Article  11  of  the  Declaration 
of  Rights  "to  obtain  right  and  justice  freely"  is  not  impaired  thereby.  Ashley 
v.  Three  Justices  of  Superior  Court  (228  Mass.  63),  p.  194. 

So  much  of  St.  1914,  c.  783,  sec.  10,  as  undertakes  to  impose  upon  the  courts 
the  duty  of  inquiry  into  corrupt  practices  in  connection  with  the  election  of 
members  of  the  General  Court  is  contrary  to  chapter  1,  section  III,  Article  X 
of  the  Constitution,  which  provides  that  "The  house  of  representatives  shall 
be  the  judge  of  the  returns,  elections,  and  qualifications  of  its  own  members," 
and  also  to  Article  30  of  the  Declaration  of  Rights,  which  declares  the  separa- 
tion of  the  legislative  and  judicial  departments  of  the  government.  Dinan  v. 
Swig  (223  Mass.  516),  p.  160. 

HOUSE   OF   REPRESENTATIVES. 

Qualification  of  Membeks. 

Statements  made  by  a  member  on  the  floor  of  the  House  will  not  be  allowed 
to  determine  or  affect  his  qualifications  as  a  member  of  another  General  Court. 
Bullock  and  Lattimore  v.  Burke  and  Driscoll  (House,  1921),  p.  73. 

Statements  by  a  representative  that  he  does  not  represent  a  certain  class  of 
voters  in  his  district  will  not  be  allowed  to  affect  his  qualifications  as  a  member. 
Ibid. 

Corrupt  Practices. 

Offences  against  the  corrupt  practice  statutes  when  trivial  and  unimportant 
will  not  affect  the  election  of  a  member.    Ibid. 


232  INDEX  DIGEST. 

HOUSE    OF    REPRESENTATIVES  —  Concluded. 
House  of  Repeesentatives. 

The  House  of  Representatives  shall  be  the  judge  of  the  returns,  elections 
and  qualifications  of  its  members.    Callahan  v.  Sweeney  (House,  1921),  p.  69. 

INDICTMENT. 

On  an  indictment  for  a  conspiracy  to  procure  persons  to  vote  at  a  caucus 
who  were  not  entitled  to  vote  there,  the  conspiracy  might  be  completed  before 
any  of  the  persons  to  be  procured  had  been  agreed  upon,  and  the  particular 
nature  of  the  disqualification  is  not  material  to  the  offence  and  need  not  be 
alleged  in  the  indictment.     Commonwealth  v.  Rogers  (181  Mass.  184),  p.  99. 

An  indictment  for  conspiring  to  procure  persons  to  vote  at  a  certain  caucus 
who  were  not  entitled  to  vote  there  is  not  bad,  because  under  its  charges  the 
conspiracy  might  be  to  procure  votes  which  were  illegal  for  different  reasons 
under  St.  1898,  c.  548,  sees.  377,  378,  and  to  abet  contrary  to  section  390  of 
that  statute,  the  offences  punished  under  these  sections  being  different,  since 
the  conspiracy  alleged  is  one,  and  properly  might  be  alleged  to  intend  them 
all.     Ibid. 

Under  St.  1899,  c.  409,  sec.  10,  an  indictment  for  conspiring  to  procure 
persons  to  vote  illegally  at  a  certain  caucus,  need  not  state  the  place  of  the 
offence.     Ibid. 

On  the  trial  of  an  indictment  for  conspiracy  to  procure  persons  to  vote  il- 
legally at  a  caucus,  there  is  no  variance  if  it  appears  that  when  the  conspiracy 
was  formed  the  conspirators  did  not  know  any  of  the  persons  named  in  the 
indictment  as  the  persons  to  be  procured,  and  that  one  of  them  was  not  spoken 
to  until  12  o'clock  on  the  day  of  the  caucus  when  all  the  plans  were  complete. 
In  such  a  case  the  fact  that  the  conspiracy  is  indictable  in  its  initial  stages 
does  not  prevent  its  being  indicted  in  the  shape  which  it  ultimately  assumes. 
Ibid. 

An  indictment  for  aiding  and  abetting  illegal  voting  at  a  caucus  is  none  the 
less  sustained  because  it  appears  that  there  were  informalities  at  the  caucus, 
if  they  did  not  make  the  vote  of  the  caucus  void.    Ibid. 

JURY  AND   JURORS. 

Trial  by  jury  is  not  essential  to  the  due  process  of  law  secured  by  the  Four- 
teenth Amendment  to  the  Constitution  of  the  United  States.  Ashley  v.  Three 
Justices  of  Superior  Court  (228  Mass.  63),  p.  194. 

The  provision  in  regard  to  trial  by  jury  in  the  Seventh  Amendment  to  the 
Constitution  of  the  United  States  relates  only  to  the  courts  of  the  United 
States.     Ibid. 

The  provisions  of  the  corrupt  practices  act  contained  in  St.  1913,  c.  835, 
sec.  497,  as  amended  by  St.  1914,  c.  783,  sec.  12,  considered  in  connection  with 
the  Fortieth  Amendment  to  the  Constitution,  do  not  give  the  respondent  in 
an  election  petition  a  constitutional  right  to  a  trial  by  jury  thereon.     Ibid. 

Article  15  of  the  Declaration  of  Rights  does  not  apply  to  an  election  peti- 
tion under  the  statute  named  above,  because  the  right  to  hold  an  office  to 
which  one  has  been  elected  is  not  "property"  within  the  meaning  of  the 
word  as  used  in  the  Declaration  of  Rights,  and  a  proceeding  upon  an  election 
petition  is  not  a  "suit  between  two  or  more  persons"  in  the  sense  in  which 
those  words  there  are  used.    Ibid. 


INDEX   DIGEST.  233 


MANDAMUS. 


Mandamus  will  lie  against  the  registrars  of  voters  of  a  city,  commanding 
them,  upon  a  recount  under  R.  L.,  c.  11,  sec.  267,  not  to  count  certain  ballots 
cast  for  mayor  on  which  the  voter's  choice  cannot  be  determined,  to  make  and 
sign  a  statement  of  the  question  raised  by  the  application  for  a  recount  of  the 
votes  cast  for  mayor,  omitting  the  ballots  thus  defective  as  votes  for  any 
person  for  that  office,  and  to  return  this  statement  to  the  city  clerk.  Flanders 
v.  Roberts  (182  Mass.  524),  p.  113. 

Mandamus  will  not  lie  to  enforce  the  caucus  or  election  laws,  the  remedy 
for  a  violation  being  given  by  St.  1898,  c.  548,  sec.  417,  R.  L.  c.  11,  sec.  421, 
Perry  v.  Hull  (180  Mass.  547),  p.  93. 

Upon  a  report  by  a  single  justice  who  heard  a  petition  for  a  writ  of  man- 
damus, which  is  a  proceeding  at  law,  this  court  has  no  jurisdiction  to  change 
or  reverse  a  decision  as  to  the  facts  made  by  the  single  justice  who  heard  the 
case  unless  the  finding  of  fact  is  not  warranted  by  the  evidence.  Mansfield  v. 
Secretary  of  the  Commonwealth  (228  Mass.  262),  p.  213. 

A  writ  of  mandamus  is  the  proper  remedy  to  prevent  the  board  of  registrars 
of  voters  of  a  town  from  counting  an  imperfectly  marked  ballot  on  a  recount. 
Brewster  v.  Sherman  (195  Mass.  222),  p.  132. 

A  voter  and  taxpayer  of  a  town  is  the  proper  party  to  maintain  a  petition 
for  a  writ  of  mandamus  ordering  the  board  of  registrars  of  voters  of  the  town 
not  to  count  an  imperfectly  marked  ballot.     Ibid. 

A  petition  for  a  writ  of  mandamus  addressed  to  the  Suffolk  County  appor- 
tionment commissioners,  who  had  filed  a  report  purporting  to  make  an  ap- 
portionment of  representation  in  the  legislative  districts  in  that  county  which 
was  void  as  in  violation  of  Article  21  of  the  Amendments  to  the  Constitution, 
commanding  them  to  proceed  with  the  performance  of  their  duties  under 
St.  1913  c.  835,  in  accordance  with  the  provisions  of  the  Constitution,  affords 
the  appropriate  form  of  relief  and  is  a  remedy  expressly  provided  by  section 
502  of  the  statute  named  for  enforcing  the  provisions  of  that  chapter.  At- 
torney-General v.  Apportionment  Commissioners  (224  Mass.  598),  p.  165. 

The  remedy  by  mandamus  described  above  is  available  to  a  citizen  and 
voter  interested  in  the  execution  of  the  laws.     Ibid. 

In  the  case  above  described  it  was  held  that  in  issuing  the  writ  of  mandamus 
no  specific  time  need  be  fixed  for  the  completion  by  the  commissioners  of 
their  work,  it  being  assumed  that  they  would  be  actuated  by  a  consciousness 
of  serious  public  duty  with  the  obligations  thereby  entailed.     Ibid. 

In  the  case  described  above  it  was  held  that  the  public  interests  being  in- 
volved, the  Attorney-General  might  institute  and  maintain  a  petition  for  a 
writ  of  mandamus  to  vindicate  the  public  right.     Ibid. 

On  a  petition  by  the  Attorney-General  for  a  writ  of  mandamus  addressed 
to  the  Suffolk  County  apportionment  commissioners  elected  under  St.  1913, 
835,  section  390,  declaring  an  apportionment  of  representation  in  the  legis- 
lative districts  in  that  county  attempted  to  be  made  by  the  respondents  to 
be  void  as  not  in  conformity  with  the  Constitution,  a  clause  in  the  reservation 
for  determination  of  the  case  by  this  court,  stating  that,  if  the  question  whether 
the  respondents  acted  in  good  faith  was  material,  this  court  might  draw  con- 
clusions from  the  apportionment  itself,  was  disregarded  by  this  court  because 
this  court  has  no  power  to  decide  facts  in  a  proceeding  at  law.     Ibid. 

See  Apportionment  Commissioners. 


234  INDEX  DIGEST. 

MARKING   OF   OFFICIAL  BALLOT. 

Under  R.  L.  c.  11,  sec.  238,  a  cross  marked  on  a  ballot  in  the  square  op- 
posite a  blank,  and  next  below  the  square  opposite  the  name  of  a  candidate, 
cannot  be  counted  as  a  vote  for  that  candidate,  although  the  person  who 
marked  it  voted  by  cross  in  the  proper  square  for  each  of  the  other  nominees 
of  the  same  political  party,  eleven  in  number,  whose  names  were  on  the  ballot. 
Flanders  v.  Roberts  (182  Mass.  524),  p.  113. 

The  provisions  of  the  election  law  requiring  that  the  cross  shall  be  marked 
"in  the  square"  is  merely  directory  and  not  mandatory,  and  a  vote  for  a 
candidate  may  be  counted  where  the  cross  was  marked  by  the  voter  against 
the  name  of  the  candidate  between  the  name  and  the  square,  if  the  intention 
of  the  voter  to  vote  for  the  candidate  is  manifest.  Beauchemin  v.  Flagg  (229 
Mass.  23),  p.  217. 

Where  a  voter  at  an  annual  election  of  a  town  who  has  made  a  cross  in  each 
of  the  squares  opposite  the  names  of  officers  for  whom  he  voted,  makes  in 
the  square  at  the  right  of  the  word  "Yes,"  following  the  question  relative  to 
the  granting  of  licenses,  a  diagonal  mark  and  nothing  more,  this  warrants  a 
finding  that  the  voter's  choice  cannot  be  determined,  and  the  ballot  should 
not  be  counted  on  this  question.    Brewster  v.  Sherman  (195  Mass.  222),  p.  132. 

Ballots  marked  with  what  may  be  termed  double  crosses  in  the  square 
opposite  the  name  of  a  candidate  will  be  counted.  Dennett  v.  Sullivan  (House, 
1910),  p.  40. 

Ballot  marked  with  a  diagonal  mark  in  the  square  opposite  the  name  of  a 
candidate  where  the  rest  of  the  ballot  is  properly  marked  with  crosses  will 
not  be  counted  as  a  vote.     Ibid. 

Ballots  marked  with  diagonal  marks  in  the  square  opposite  the  name  of  the 
candidate  will  be  counted,  where  the  rest  of  the  ballot  is  similarly  marked. 
Ibid. 

Check  marks  will  be  counted  as  votes  where  the  rest  of  the  ballot  is  similarly 
marked.     Ibid. 

Ballot  marked  with  cross  in  the  space  between  the  name  of  the  candidate 
and  the  name  of  the  political  designation  will  be  counted.     Ibid. 

A  ballot  where  the  lines  of  intersection  run  in  opposite  directions  but  in- 
tersect in  the  square  opposite  the  name  of  a  candidate,  although  the  cross 
is  not  complete  and  one  line  does  not  pass  the  point  of  intersection,  will  be 
counted  for  that  candidate.    Moore  v.  Booth  (House,  1910),  p.  35. 

Where  the  ballot  was  marked  with  a  perfect  cross  throughout,  except  for 
one  candidate,  in  the  square  opposite  whose  name  appeared  a  line  like  the 
second  stroke  of  a  cross,  around  and  upon  a  part  of  which  appeared  a  circle, 
the  ballot  will  not  be  counted  for  such  candidate,  as  such  an  unusual  mark 
will  be  deemed  to  have  some  significance  and  might  have  been  intended  for 
a  mutilation  of  the  cross  which  had  been  made,  and  therefore  the  intention  of 
the  voter  is  not  clear.     Ibid. 

Ballots  where  cross  marks  in  the  squares  opposite  the  names  of  the  can- 
didates were  not  so  clearly  defined  as  the  rest  of  the  ballot,  in  absence  of 
evidence  of  erasure,  will  be  counted.    Riley  v.  Aldrich  (House,  1904),  p.  28. 

Ballot  marked  with  two  oblique  strokes  in  the  square  opposite  the  name 
of  the  candidate,  forming  a  rude  letter  Y,  will  be  counted.     Ibid. 

Ballot  marked  with  two  oblique  strokes  in  the  square  opposite  the  name  of 
the  candidate,  which,  if  they  had  intersected  would  have  formed  a  letter  Y, 
will  be  counted.     Ibid. 


INDEX  DIGEST.  235 

MARKING    OF    OFFICIAL    BALLOT  —  Concluded. 

Ballot  where  intersection  of  cross  marks  was  upon  lower  line  of  square, 
opposite  the  name  of  the  candidate,  a  blank  space  being  next  below,  will  be 
counted.     Ibid. 

Ballots  with  single  stroke  in  the  square  will  be  counted.     Ibid. 

Ballots  with  two  single  strokes  in  the  square,  like  the  figure  11,  will  be 
counted.     Ibid. 

Ballot  with  caret,  or  inverted  V,  in  the  square,  will  be  counted.     Ibid. 

Ballots  with  cross  mark  between  residence  and  political  designation  will  be 
counted.     Ibid. 

Ballot  where  pencil  had  injured  paper  in  marking,  mark  being  in  the  proper 
place,  will  be  counted.     Ibid. 

A  ballot  having  crosses  in  the  squares  opposite  the  names  of  the  two  Demo- 
cratic candidates,  and  another  cross  in  the  space  above  the  heading  "Repre- 
sentative to  General  Court,"  the  cross  above  the  space  was  ignored  and  the 
ballot  counted.     Ibid. 

Ballot  with  mark  in  square  opposite  the  name  of  the  candidate,  resembling 
an  inverted  Y,  will  be  counted.     Ibid. 

Ballot  with  cross  in  the  square  opposite  the  name  of  the  candidate,  marked 
over  with  the  figure  2,  will  be  counted.     Ibid. 

If  the  intention  of  the  voter  can  be  determined  from  an  inspection  of  the 
ballot,  that  intention  must  prevail.  In  other  words,  if  it  be  reasonably  clear 
for  whom  the  voter  intended  to  vote,  the  ballot  must  be  so  counted. 

See  Mandamus. 

PASTERS  ON  OFFICIAL  BALLOT. 

The  election  laws  relating  to  the  use  of  stickers  or  pasters  were  enacted  not 
merely  to  preserve  the  purity  and  secrecy  of  the  ballot  and  to  curb,  in  so  far  as 
possible,  corrupt  practices,  but  also  to  ascertain  and  not  thwart  the  popular 
will  honestly  expressed.    Harvey  v.  Bradbury  (House,  1920),  p.  58. 

Election  officers  should  refuse  to  accept  ballots  or  stickers  not  in  conformity 
with  law;  if  allowed  to  be  deposited  and  not  counted  the  voters  would  be  dis- 
enfranchised.    Ibid. 

Where  the  paster  or  sticker  is  pasted  over  the  name  of  the  opposing  candi- 
date, the  vote  will  be  counted  for  the  substituted  name,  as  the  intent  to  make 
the  substitution  is  clear.     Ibid. 

The  use  of  the  name  of  a  party  as  "Republican"  on  a  paster,  though  pro- 
hibited by  statute,  will  not  invalidate  an  election,  in  absence  of  evidence  that 
the  result  of  the  election  was  affected  thereby.     Ibid. 

The  provisions  of  the  statutes  relative  to  the  size  of  type  to  be  used 
on  stickers  is  directory  and  not  mandatory,  and  if  ballots  containing  such 
irregular  stickers  are  once  deposited  in  the  ballot  box  they  should  be  counted. 
Ibid. 

If  irregular  stickers  are  deposited  in  the  ballot  box  they  should  be  counted, 
otherwise  the  voter  is  disenfranchised.     Ibid. 


236  INDEX  DIGEST. 

PASTERS    ON    OFFICIAL    BALLOT  —  Concluded. 

Ieregttlarities  in. 

The  intent  of  the  voter  honestly  expressed  should  be  the  governing  rule, 
unless  the  statute  provides,  as  a  penalty  for  the  violation  of  its  provisions,  that 
the  vote  should  not  be  counted.     Ibid. 

A  voter  is  not  required  to  ascertain  the  legality  of  a  sticker  or  paster  which 
he  is  allowed  by  election  officials  to  paste  on  his  ballot,  and  which  ballot  is  de- 
posited by  the  voter  in  good  faith.     Ibid. 

There  being  no  express  statutory  provision  to  the  contrary,  a  voter's  desig- 
nation on  the  official  ballot  of  his  choice  for  a  certain  office  by  pasting  over  a 
name  regularly  placed  upon  the  ballot  a  slip  containing  the  name  of  a  person 
not  nominated  by  any  party  and  then  placing  a  cross  in  the  appropriate  blank 
opposite  the  name,  while  irregular,  is  not  illegal,  and  the  ballot  properly  may 
be  counted  as  a  vote  for  the  person  named  on  the  slip.  Ray  v.  Registrars  of 
Voters  of  Ashland  (221  Mass.  223),  p.  155. 

Where  such  election  was  for  choice  of  selectmen  for  a  term  of  three  years, 
the  words  "three  years"  placed  after  the  name  printed  on  the  slip  do  not  as  a 
matter  of  law  constitute  a  mark  upon  the  ballot  by  which  it  may  be  identified, 
as  described  in  St.  1913,  c.  835,  sec.  295,  nor  render  the  ballot  invalid.     Ibid. 

Such  a  ballot  properly  may  be  counted  for  the  man  whose  name  appears  upon 
the  paster,  although  only  the  capital  letters  that  begin  his  Christian  and  sur- 
name and  his  middle  initial  are  printed  in  type  conforming  to  the  requirements 
of  St.  1913,  c.  835,  sees.  280,  258,  261,  as  to  size  and  character  of  the  letters. 
Ibid. 

PLEADING. 

A  count  for  a  conspiracy  to  procure  illegal  voting  and  account  for  aiding  and 
abetting  illegal  voting  are  for  offences  similar  in  their  nature,  mode  of  trial  and 
punishment,  and  may  be  joined  in  one  indictment  at  common  law.  Common- 
wealth v.  Rogers  (181  Mass.  184),  p.  99. 

PRACTICE,   CIVIL. 

Objection  to  Jurisdiction. 

In  an  election  petition  brought  under  St.  1914,  c.  783,  sec.  10,  charging  a 
violation  of  the  provisions  of  the  corrupt  practices  act,  a  plea  in  abatement, 
setting  up  a  defence  that  the  subpoena  had  been  made  returnable  in  fifteen 
days  instead  of  fourteen  days  after  the  filing  of  the  petition,  was  held  to  be 
within  the  jurisdiction  of  the  Superior  Court,  and  not  be  open  upon  a  petition 
for  a  writ  of  prohibition,  filed  a  few  days  after  the  plea.  Ashley  v.  Three  Jus- 
tices of  Superior  Court  (228  Mass.  63) ,  p.  194. 

PROHIBITION,  WRIT   OF. 

A  writ  of  prohibition  will  not  be  issued  to  correct  errors  or  irregularities  of  a 
tribunal  that  is  acting  within  its  jurisdiction,  and  can  be  invoked  only  to  pre- 
vent such  tribunal  from  exercising  a  jurisdiction  that  it  does  not  possess. 
Ashley  v.  Three  Justices  of  Superior  Court  (228  Mass.  63),  p.  194. 

In  an  election  petition  brought  under  St.  1914,  c.  783,  sec.  10,  charging  a 
violation  of  the  provisions  of  the  corrupt  practices  act,  a  plea  in  abatement, 
setting  up  a  defence  that  the  subpoena  had  been  made  returnable  in  fifteen  days 
instead  of  fourteen  days  after  the  filing  of  the  petition,  was  held  to  be  within 
the  jurisdiction  of  the  Superior  Court,  and  not  to  be  open  upon  a  petition  for 
writ  of  prohibition,  filed  a  few  days  after  the  plea.     Ibid. 


INDEX   DIGEST.  237 


RECOUNT   OF   VOTES. 


Where  in  case  of  the  election  of  a  chief  engineer  by  a  fire  district  under  R.  L. 
c.  32,  sec.  54,  there  is  no  provision  for  a  recount,  the  original  count  is  final.  In 
such  a  case  the  clerk  should  destroy  the  ballots,  and,  if  illegally  he  preserves 
them,  they  cannot  be  used  to  invalidate  the  election.  Fritz  v.  Crean  (182  Mass. 
433),  p.  109. 

Under  R.  L.  c.  11,  sees.  266,  267,  except  in  towns  where  the  official  ballot  is 
used  or  where  the  officers  are  "voted  for  on  one  ballot,"  there  can  be  no  re- 
count of  the  votes  cast  for  an  officer  of  the  town  after  the  result  of  the  election 
has  been  announced  and  recorded  and  the  meeting  has  been  adjourned. 
Eldridge  v.  Selectmen  of  Chatham  (192  Mass.  409),  p.  129. 

As  proceedings  for  a  recount  of  votes  are  strictly  statutory,  they  are  of  no 
effect  unless  they  are  authorized  by  statute  and  begun  and  conducted  as  the 
statute  provides.     Ibid. 

By  House  of  Representatives. 

The  House  of  Representatives  will  exercise  the  right  to  recount  the  ballots 
in  a  contested  election  of  a  representative,  upon  satisfactory  preliminary  proof 
of  such  substantial  facts  or  well-grounded  suspicion  as  would  induce  strong 
conviction  that  fraud  or  mistake  prejudicial  to  the  contestant  might  appear 
from  such  examination.     Lambert  v.  Forrestall  (House,  1907),  p.  32. 

Where  a  candidate  was  declared  elected  by  one  vote  at  a  recount,  the  close- 
ness of  the  vote,  evidence  that  the  recount  was  conducted  in  an  irregular 
manner,  that  the  tally  sheets  were  loosely  handled,  that  the  result  of  the  tabu- 
lation was  prematurely  announced,  that  outsiders  were  permitted  to  verify 
the  tabulation,  and  had  access  to  the  tally  sheets,  thereby  affording  an  oppor- 
tunity for  fraud  and  mistake,  —  taken  collectively  will  warrant  the  House  of 
Representatives  in  recounting  the  ballots.  Dennett  v.  Sullivan  (House,  1910), 
p.  40. 

Where  there  is  evidence  that  a  mistake  has  been  made  in  a  recount  in  deter- 
mining the  result  of  a  vote  for  representative  the  House  of  Representatives 
will  recount  the  ballots.    Moore  v.  Booth  (House,  1910),  p.  35. 

The  House  of  Representatives  will  not  recount  the  ballots  in  a  district, 
where  the  petitioner  has  not  availed  himself  of  his  statutory  rights  in  respect 
to  a  recount,  unless  he  was  prevented  from  doing  so  by  the  fraud  of  his  opponent 
or  by  some  cause  beyond  his  control.     Ibid. 

Where,  upon  a  recount  of  votes  by  the  registrars  of  voters,  they  refuse  or 
neglect  to  make  and  sign  the  returns  and  statements  required  by  law  and  to 
declare  the  result  of  the  recount,  the  House  will  order  the  ballots  recounted  in 
order  to  ascertain  who  is  elected.    Naphen  v.  Brennan  (House,  1914),  p.  53. 

Where  an  election  for  representative  has  been  declared  a  tie  the  House 
will  order  the  ballots  counted.    Whitney  v.  Cobb  (House,  1915),  p.  56. 

The  mere  closeness  of  the  vote  does  not  in  and  of  itself  justify  a  recount  by 
the  House  of  Representatives.    Newell  v.  Coffin  (House,  1903),  p.  15. 

A  change  in  the  vote  of  one  part  of  a  district  by  a  recount,  in  the  absence  of 
evidence  of  fraud  or  mistake,  cannot  be  used  to  discredit  the  accuracy  of  the 
count  of  election  of  officials  in  other  parts  of  the  district.     Ibid. 

Where  the  vote  in  the  district  is  close  and  a  recount  has  been  refused  by  the 
registrars  of  voters  on  account  of  a  formal  defect  in  the  petition  for  a  recount, 
though  the  petition  was  signed  by  the  requisite  number  of  voters,  filed  within 
the  time  required  by  law,  and  notice  that  the  recount  would  be  held  had  been 
sent  to  the  petitioner  by  the  registrars,  the  House  of  Representatives  will 
recount  the  vote.    Ibid. 


238  INDEX  DIGEST. 

REGISTRARS  OF  VOTERS. 

The  State  convention  of  the  Democratic  party,  held  in  the  autumn  of  1907, 
for  the  purpose  of  placing  in  nomination  candidates  for  State  officers  to  be  voted 
for  at  the  next  annual  election,  divided  into  two  factions,  one  of  which  nomi- 
nated one  B.  for  Governor,  while  the  other  nominated  one  W.  Each  faction 
claimed  the  party  designation,  and,  under  St.  1907,  c.  560,  sees.  171,  175,  176, 
filed  with  the  Secretary  of  the  Commonwealth  a  ticket  designated  "Demo- 
cratic," and,  each  objecting  to  the  ticket  filed  by  the  other,  the  dispute  was 
referred  under  section  179  of  that  statute  to  the  State  Ballot  Law  Commission. 
It  becoming  apparent  that  the  decision  of  the  commission  would  be  so  delayed 
that,  after  its  rendition,  the  defeated  faction  would  be  unable  to  file  nomi- 
nation papers  under  section  177,  both  factions  filed  such  papers,  each  placing 
in  nomination  the  persons  upon  the  ticket  nominated  by  its  convention.  The 
nomination  paper  containing  W.  as  a  candidate  for  Governor  was  designated 
"Democratic  citizens."  After  the  time  within  which  nomination  papers  must 
be  filed  under  section  177,  and  the  time  within  which  they  might  be  withdrawn 
under  section  180,  the  commission  decided  that  the  ticket  headed  by  W.  as  a 
candidate  for  Governor  was  entitled  to  the  designation  "  Democratic. "  On  the 
ballot  at  the  State  election,  W.  therefore  appeared  as  a  candidate  for  Governor 
under  the  designations  "Democratic"  and  "Democratic  citizens,  nomination 
paper."  At  that  election,  a  candidate  designated  "Republican"  received  the 
highest  number  of  votes,  and  a  candidate  designated  "Independence  League" 
received  more  votes  than  were  cast  for  W.  under  the  designation  "Demo- 
cratic," but  less  than  the  total  number  cast  for  W.  under  both  the  designations 
"Democratic"  and  "Democratic  citizens." 

A  member  of  the  party  designated  "Democratic,"  as  representative  of  one 
of  the  two  leading  political  parties,  was  appointed  a  member  of  the  board  of 
registrars  of  voters  of  a  city  under  section  27  of  the  statute  mentioned  above, 
which  provides  that  such  members  shall  be  so  appointed  that  they  shall  repre- 
sent, as  equally  as  may  be,  the  "two  leading  political  parties,"  and  an  informa- 
tion by  the  Attorney-General,  at  the  relation  of  members  of  the  party  desig- 
nated "Independence  League,"  in  the  nature  of  a  quo  warranto,  was  filed  to 
try  the  title  of  the  appointee  to  his  office.  Held,  that  under  the  circumstances 
the  votes  cast  for  W.  under  the  designation  "Democratic  citizens,  nomination 
paper,"  were  votes  belonging  to  the  party  designated  "Democratic,"  and 
therefore  that  the  respondent  was  entitled  to  his  office,  since  he  was  a  member 
of  the  "  democratic  "  party,  which  was  one  of  the  "  two  leading  political  parties" 
under  section  1  of  the  statute.  Attorney-General  v.  McOsker  (198  Mass.  340), 
p.  142. 

RETURN  OF  VOTES,  RECORD. 

The  provision  of  R.  L.  c.  11,  sec.  267,  relating  to  recounts  of  ballots  cast  at  a 
city  or  town  election,  that  "the  records  so  amended  shall  stand  as  the  true 
records  of  the  election,"  does  not  take  away  the  jurisdiction  of  the  Supreme 
Judicial  Court  to  correct  errors  of  law  appearing  on  the  face  of  the  record. 
Flanders  v.  Roberts  (182  Mass.  524),  p.  113. 

SELECTMEN. 

Under  St.  1898,  c.  548,  sees.  335,  336,  361,  a  town,  which  has  adopted  the 
use  of  official  ballots  for  the  election  of  town  officers,  may,  at  a  meeting  held 
more  than  thirty  days  before  the  next  annual  meeting,  vote  to  abandon  the 
method  of  electing  selectmen  provided  by  section  335,  theretofore  adopted  by 
the  town,  and  return  to  its  former  method  of  electing  annually  three  selectmen 
to  serve  for  one  year.    Attorney-General  v.  Hutchinson  (185  Mass.  85),  p.  119. 


INDEX   DIGEST.  239 

SUPERIOR  COURT. 

Under  St.  1914,  c.  783,  sec.  10  (c)  an  assignment  of  three  judges  who  are  to 
hear  and  determine  all  matters  arising  under  election  petitions  during  the  year, 
including  a  petition  already  filed,  made  by  the  chief  justice  nearly  three  months 
after  the  last  annual  state  election  on  the  day  following  the  granting  of  an  order 
that  there  was  reasonable  cause  to  believe  that  a  corrupt  practice  had  been 
committed,  was  held  to  be  a  valid  assignment.  Ashley  v.  Three  Justices  of 
Superior  Court  (228  Mass.  63),  p.  194. 

In  an  election  petition  brought  under  St.  1914,  c.  783,  sec.  10,  charging  a 
violation  of  the  provisions  of  the  corrupt  practices  act,  a  plea  in  abatement, 
setting  up  a  defence  that  the  subpoena  had  been  made  returnable  in  fifteen  days 
instead  of  fourteen  days  after  the  filing  of  the  petition,  was  held  to  be  within 
the  jurisdiction  of  the  Superior  Court,  and  not  to  be  open  upon  a  petition  for 
a  writ  of  prohibition,  filed  a  few  days  after  the  plea.    Ibid. 

SUPREME  JUDICIAL  COURT. 

Upon  a  report  by  a  single  justice  who  heard  a  petition  for  a  writ  of  man- 
damus, which  is  a  proceeding  at  law,  this  court  has  no  jurisdiction  to  change 
or  reverse  a  decision  as  to  the  facts  made  by  the  single  justice  who  heard  the 
case  unless  the  finding  of  fact  is  not  warranted  by  the  evidence.  Mansfield  v. 
Secretary  of  the  Commonwealth  (228  Mass.  262),  p.  213. 

TOWN  CLERK. 

If  a  town  clerk  fails  to  record  the  number  of  votes  cast  at  an  election,  where 
such  a  record  is  required,  this  does  not  invalidate  the  election.  In  such  a  case, 
the  clerk  has  power,  and  it  would  be  his  duty,  to  amend  the  record  and  state  the 
facts.     Wheeler  v.  Carter  (180  Mass.  382),  p.  87. 

St.  1898,  c.  548,  sec.  373,  providing  for  the  punishment  of  a  city  or  town 
clerk  who  fails  to  make  a  record  of  the  votes  cast  at  an  election,  does  not  apply 
to  the  record  of  the  election  of  town  officers  at  a  general  meeting  of  the  in- 
habitants of  a  town.    Ibid. 

TOWN  MEETING. 

An  article  in  the  warrant  of  a  town  meeting  was  "to  choose  all  necessary 
town  officers  for  the  ensuing  year."  The  town  had  accepted  St.  1898,  c.  548, 
sec.  335,  which  required  that  the  selectmen  should  be  elected  for  a  term  of 
three  years.  Held,  that  the  article  was  sufficient ;  that  to  choose  officers  for  the 
ensuing  year  was  to  choose  them  according  to  the  law  in  force.    Ibid. 

VOTER. 

A  voter  and  taxpayer  of  town  may  petition  for  mandamus,  ordering  regis- 
trars of  voters  not  to  count  imperfectly  marked  ballot  in  recount.  Brewster  v. 
Sherman  (195  Mass.  222),  p.  132. 

Ballot  held  to  have  been  marked  so  imperfectly  that  voter's  choice  could 
not  be  determined.     Ibid. 

VOTING  MACHINE. 

The  provisions  of  the  Constitution  requiring  that  representatives  to  the 
General  Court  shall  be  "chosen  by  written  votes,"  those  which  by  implication 
require  that  other  State  officers  shall  be  chosen  in  the  same  way,  and  those  in 
regard  to  the  sorting  and  counting  of  votes  in  such  elections,  cannot  be  com- 
plied with  by  the  use  of  a  voting  machine  which  does  not  indicate  the  choice 


240  INDEX  DIGEST. 

VOTING    MACHINE  —  Concluded. 

of  the  voter  by  some  kind  of  writing  upon  a  paper  or  other  material  thing 
which  in  his  sight  shall  pass  from  his  control  to  that  of  the  officers  charged  with 
the  duty  of  conducting  the  election,  and  which  with  the  other  written  votes 
cast  in  the  election  shall  continue  to  be  the  same  material  things  capable  of 
being  handled,  sorted  and  counted.  Nichols  v.  Election  Commissioners  (196 
Mass.  410),  p.  136. 

Under  our  constitution  a  voting  machine  which  does  not  indicate  choice  of 
votes  by  some  kind  of  writing  upon  a  material  thing  capable  of  being  handled, 
counted  or  preserved  cannot  be  used  in  State  elections.    Ibid. 


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